A restored 15-second moment of silence swept over Evanston public school students before classes commenced last Monday morning, but it hardly quieted a legal debate that has now been swirling for more than two years.
Parties with a stake in the controversial moment of silence decision are still far from reaching a consensus on its constitutionality, with one PTA representative describing it as “good for everyone” and a staunch opponent decrying it as “baloney.”
The state legislature amended the Silent Reflection and Student Prayer Act in 2007 to mandate that public schools recognize a daily period of silence at least 15 seconds long. The amendment was later challenged by atheist activist Rob Sherman and his 17-year-old daughter Dawn, who claimed it violates the First Amendment’s ban on government-established religion.
The Shermans, who live in Buffalo Grove, were initially successful in their challenge of the legislation’s constitutionality, but Chicago’s Seventh Circuit Court of Appeals reversed an October ruling that asserted the law’s language exclusively specified a religious intent.
The court injunction suspending the moment of silence was lifted Jan. 14. In his weekly message, Illinois Schools Superintendent Christopher Koch informed state educators that they can choose how to conduct the moment of silence in their individual districts.
The abrupt return of the Moment of Silence represents “baloney” lawmaking, Sherman said.
“This is trying to force kids to think about prayer,” he said. “That is not a secular function of government.”
Sherman argued that the legislative language flirts with promoting school prayer by calling for “silent reflection on the anticipated activities of the day.” He said the vast majority of students are mostly unaware of the school day’s upcoming events, a reality that nullifies the law’s aim.
“That gives them one option that they’re capable of – to pray,” Sherman added.
Although Sherman’s objection may make sense to the casual observer, Andrew Koppelman, a John Paul Stevens Professor of Law at Northwestern School of Law, said it has no legal basis. Instead, he pointed to Wallace v. Jaffree, a 1985 U.S. Supreme Court case that determined moments of silence only defy the Constitution if they carry an obvious religious purpose. This pointed agenda is absent in the Illinois moment-of-silence legislation, according to the majority opinion in Sherman v. Koch, which overturned the injunction in October.
“The secular purpose of providing a moment of silence at the beginning of each school day is to calm students and ready them for the school day, ” U.S. Circuit Judge Daniel Manion wrote, acknowledging that Sherman viewed this non-religious motive as a “sham.”
But simply dismissing an established law as bogus will not suffice in court, Koppelman said.
“‘This law is silly’ is just not a constitutional argument,” he said.
Stephen Presser, Koppelman’s colleague in law school, was more hesitant to deem the Silent Reflection and Student Prayer Act legally acceptable. He said modern applications of the separation of church and state have become increasingly “messy and irreconcilable” for two reasons: Courts are progressively more encouraging of free exercise of religion and moment-of-silence statutes are perceived as modes for self-discipline in schools.
Regardless, Presser downplayed the decision’s impact, citing the legal inconsistency of, for example, not being allowed to post the Ten Commandments in a public school classroom but being able to print “In God We Trust” on American currency.
“The courts’ interpretations of the establishment clause … are an incredible mishmash and almost impossible to make sense out of,” Presser wrote in an e-mail.
Meanwhile, PTA representatives in District 65 are reacting to the restoration with cautious approval. Laura Baumann, co-president of the Orrington School PTA, hailed the daily period as “good for everyone” because of its potential relaxing effect.
“I think having the moment of silence is appropriate in that it makes people reflective,” she said.
On the other hand, Cherie Hanson, Evanston Township High School PTA co-president, emphasized that the disputed law, while not unconstitutional, does raise some serious questions.
“As a parent, I do believe in separation of church and state,” she said. “There’s a fine line with this.”
Hanson said she would be personally offended if her children were asked to pray, which she acknowledged is not the case in District 65. The long-term efficacy of the state legislation “depends on how it’s presented to the kids,” she said.
District 65 Superintendent Dr. Hardy Murphy Jr. addressed this specific concern in a letter to parents earlier this month. He wrote that he would follow the state superintendent’s recommended implementation, inserting the 15-second moment of silence preceding the Pledge of Allegiance and morning announcements.
Murphy would not comment on whether the moment of silence’s resurfacing endangers constitutional principle.
“My job is operating the school district within the parameters of the law,” he said, adding that he is merely following directions provided by the courts and Koch.
