- The Washington Times - Wednesday, May 9, 2001

RICHMOND — The American Civil Liberties Union took its challenge of Virginias public schools minute-of-silence law to the U.S. 4th Circuit Court of Appeals yesterday, arguing a lower federal court erred in finding it constitutional.
Stuart H. Newberger, the lawyer for the Virginia chapter of the ACLU, said including the word "pray" in the state law violates the Establishment Clause of the Constitution. William Hurd, Virginias solicitor general, said not including the word could cause schools and teachers to discriminate against students who want to pray during the silence, thus violating the Constitutions guarantee of free exercise of religion.
The state passed a law last year that required every school to observe a daily minute of silence for prayer, meditation or any other silent activity. The old law had allowed but not required a minute of silence, and it had the same three options of prayer, meditation or other silent activity.
Days before school opened in the fall, the ACLU, on behalf of a handful of students around the state, sued to overturn the new law. But U.S. District Judge Claude M. Hilton upheld it in a decision last October, and a panel of the appeals court has allowed the law to remain in effect while they consider the case.
Yesterdays hearing was before a three-judge panel, which gave no indication when it would rule.
The root of Mr. Newbergers argument is that a statute that allows for prayer inherently blurs the separation of government and religion, and is therefore illegal.
"I dont have a problem with the minute of silence. I dont have a problem with a lot of things teachers do … . But when the word 'prayer is put in, that should be the end of it. It should be unconstitutional," he said.
He also said that the legislative history of the law — which shows that lawmakers specifically voted to keep prayer as part of the law — means lawmakers sought to protect prayer as a preferred activity.
Speaking with reporters after the hearing, Mr. Newberger said the case law is clear and leaves the panel little choice. "I dont think they have to think very much, since the Supreme Court — which says the law of the land — has told us this type of law is unconstitutional."
But Mr. Hurd said a majority of justices ruling in a 1984 case about an Alabama law, Wallace vs. Jafree, said just the presence of the word "prayer" isnt enough.
"It is troubling that the ACLU does not want the state to tell teachers or students or parents about their constitutional rights," Mr. Hurd said after the hearings.
Judge Paul V. Niemeyer seemed to agree, and asked Mr. Newberger why prayer seems to be "poison" for childrens minds.
"Youre suggesting this is something so horrendous," he said.
The students on whose behalf the ACLU sued said yesterday some schools carefully observe the minute of silence, while in other schools many students ignore it.
A spokesman for the Attorney Generals Office said they have received no complaints about the way schools and teachers are carrying out the law.
But the ACLU has heard complaints. Rebecca Glenberg, the organizations legal director, said theyve heard of the minute being announced as a minute of prayer rather than a minute of silence, of teachers who fold their hands and bow their heads during the minute, "communicating to kids its for prayer, even if they dont say it," or of other teachers who announce to the class they themselves will use the minute for prayer.
Those probably wont be part of the pending lawsuit, she said, but if the courts uphold the law, those could be the basis of further lawsuits.

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