- The Washington Times - Friday, September 1, 2000

A federal judge in Alexandria yesterday refused to halt Virginia's new law mandating a minute of silence in all public schools.
The state chapter of the American Civil Liberties Union (ACLU) had asked U.S. District Judge Claude M. Hilton for an immediate injunction against the law, but his ruling means about 1 million schoolchildren will begin their day with a minute of silence on Tuesday when they return from summer break.
The ACLU will appeal the ruling to the U.S. 4th Circuit Court of Appeals in Richmond today.
Judge Hilton yesterday also set a full hearing on the ACLU's request for summary judgment to declare the law unconstitutional for next Friday.
"I find that whatever bit of coercion could possibly be there and that's yet to be determined is not going to have irreparable harm," Judge Hilton said of letting the law go into effect for the next week.
Virginia lawmakers changed the law this year from an optional to a mandatory minute of silence in every school in the state. During that minute, students may "meditate, pray or engage in any other silent activity" that doesn't interfere with other students' choice.
Stuart H. Newberger, the lawyer arguing the case for the ACLU, said by specifying the option to pray the state is taking a position in religious matters something forbidden by the First Amendment. He also said lawmakers intended to put religion into schools through the law.
But William H. Hurd, solicitor general for Virginia Attorney General Mark L. Earley, told the judge the purpose of the law is secular to reserve time in the day during which students can gather their thoughts.
During the 80 minutes of oral arguments, the judge peppered Mr. Newberger with questions about the workings of the Virginia law and the expectations of the U.S. Supreme Court for moment-of-silence laws.
The judge asked for evidence the state was encouraging prayer, rather than just listing it as an option. Mr. Newberger said the law on its face crosses the line by including the word "pray."
Judge Hilton then asked how that could be, if it's just one of several options students may choose during the minute.
Mr. Newberger said that by including the word at all, the government sends the message that it approves of, or supports, prayer. "[The government] has now attempted to enter the sphere of private conscience of belief," he said.
Mr. Newberger argued the Supreme Court, ruling in the critical 1985 Wallace vs. Jaffree case from Alabama, already struck down a law very similar to Virginia's.
But Judge Hilton saw a difference between the two laws. He said the Alabama law created the minute of silence for the purpose of meditation or prayer, and specifically excluded other activities. The Virginia law, he said, separates the two parts, first establishing the minute of silence in one section, then in another section describing allowed activities, including any silent, nondisruptive activity.
That could be a critical difference at next Friday's hearing. But regardless of that hearing's outcome, the loser will almost certainly appeal to the 4th Circuit, and the case could eventually go to the U.S. Supreme Court.
For now, the law remains in effect, and walkouts are likely at some schools, including Thomas Jefferson High School for Science and Technology, a magnet school in Fairfax County.
Half of the families in the case have children at Jefferson, and some of those students said they plan to first tell their teachers and then walk out Tuesday.
That's what Jordan Kupersmith, a 16-year-old Loudoun County student, did this week. The principal didn't take action the first day, but the second day he called Jordan into the office and gave him detention.
The school and Jordan's family worked out an agreement that allows him to go to the principal's office during the minute of silence, then go to class. Outside the courtroom yesterday, Jordan said he hopes the agreement will remain in place.
In Fairfax County, new school regulations already make it clear parents can opt their children out of observing the minute of silence.
At Jefferson, new Principal Elizabeth Lodal met with student government leaders yesterday and said as long as students are quiet and respectful, she will allow those who wish to leave the classroom during the minute to do so.
Mia Magruder, one of the plaintiffs and a student at Amherst Middle School in Amherst County, near Lynchburg, said that while the law is in effect, some students will face persecution from classmates.
"This law ostracizes people," said Mia, 13. "It just brings out this thing where people can come and really make you uncomfortable."

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