- The Washington Times - Wednesday, July 25, 2001

Virginia's law requiring public school students to observe a daily minute of silence in classrooms is constitutional, a divided panel of the U.S. 4th Circuit Court of Appeals ruled yesterday.
The 2-1 ruling by the Richmond-based court means Virginia public schools will continue to set aside a minute for students to pray, meditate or conduct another silent activity of their choice, as long as it isn't disruptive.
The lawyer for the American Civil Liberties Union already has promised to appeal to the U.S. Supreme Court, and Virginia's attorney general said he's ready to defend the law.
The two judges ruling in favor of the state wrote that the law is an acceptable balance of competing First Amendment rights: the prohibition against establishing a religion —what has come to be known as the separation of church and state —and individuals' right to practice their religion.
"In establishing a minute of silence, during which students may choose to pray or to meditate in a silent and nonthreatening manner, Virginia has introduced at most a minor and nonintrusive accommodation of religion that does not establish religion. By providing this moment of silence, the State makes no endorsement of religion," wrote Judge Paul V. Niemeyer, who was joined in his opinion by Judge Karen Williams.
The state General Assembly, arguing that it would help students collect themselves and reflect on things, voted overwhelmingly last year to require every school to host a minute of silence. Before, the law merely had allowed schools the option. The law took effect during summer school last year, with most schools choosing to hold the minute of silence during morning announcements.
But just before schools reopened in September, a handful of students — with the help of the American Civil Liberties Union (ACLU) — sued, arguing that the law was a backdoor attempt to promote prayer in schools.
First a federal district judge in Alexandria, and now the appeals panel, have rejected that argument and upheld the law — and along the way, both allowed schools to continue to hold the period of silence while the case made its way through the courts.
Other than a few problems in the early days — students being disciplined for walking out to protest the law, for instance — there haven't been many public complaints from school administrators or students.
Still, the student plaintiffs said the minute of silence has become a joke in some classrooms, and the ACLU has received complaints about teachers explicitly or implicitly promoting prayer. Those individual complaints aren't part of the current suit, which challenges the law on its face, though they provide the basis for future lawsuits.
The crux of yesterday's decision was what lawmakers intended when they changed the law, and how the Supreme Court's 1985 decision in an Alabama case, Wallace v. Jaffree, affects Virginia's law.
In their opinion, Judge Niemeyer and Judge Williams accepted lawmakers' word that the law isn't an attempt to impose prayer in public schools. They said that stands in "stark contrast" to the facts in the Wallace case, in which lawmakers proclaimed their intentions to circumvent a prohibition on prayer.
But in his dissent, Judge Robert B. King invoked Supreme Court Justice Tom C. Clark and wrote that he sees the assembly's motives as more dramatic and more dangerous.
"The 'minute of silence' mandated by the Virginia statute is, like the Trojan Horse, a hollow guise. But the citizens of Virginia have naught to fear from Greek soldiers. Instead, the Commonwealth bears its 'gift' as a means of invading Justice Clark's 'inviolable citadel' — the hearts and minds of Virginia schoolchildren — in an effort to once more usher state-sponsored religion into public schools," Judge King wrote.
Stuart H. Newberger, the lawyer who argued the case on behalf of the ACLU and the students, said he will ask the Supreme Court to take the case.
"I think there's an excellent chance the Supreme Court would take the case. I'd be surprised if they don't, given Wallace v. Jaffree. And given, I might add, that [after this decision] the law is illegal in Alabama and legal in Virginia. That is intolerable," Mr. Newberger said.
Virginia Attorney General Randolph A. Beales, who inherited the case from former Attorney General Mark L. Earley, said yesterday he is ready to face that challenge.
Both the district and appeals cases were argued on the watch of Mr. Earley, who is the Republican candidate running for governor.


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