Supreme Court to Mull Legality of VA Minute of Silence

By Jason Pierce | July 7, 2008 | 8:19pm EDT

( - When Virginia children went back to school a year ago, a legal firefight awaited them over a newly imposed minute of silence law, which requires every public school to set aside one minute at the beginning of each day for students to engage in "meditation, prayer or other silent activity."

A year later, the same legal battle ensues, but this time, it has been taken to the highest court in the land.

As soon as the law was passed last year, seven Virginia families, along with the American Civil Liberties Union, filed suit in a federal district court asking for an immediate injunction to block the law from taking effect. They also asked that the minute of silence law be declared unconstitutional on grounds that it violated religious freedom.

Lawyers representing the seven families lost their case in district court last fall and again, in a federal appeals court, this past July. But on Friday, the ACLU announced it is taking the case to the U.S. Supreme Court, asking for both the immediate injunction and repeal of the law.

In the text of the law, the state provides for 60 seconds of silence in the classroom, and according to the statute, pupils may, "in the exercise of his or her individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice."

But the ACLU maintains that the minute of silence is nothing more than "state-sanctioned prayer in public schools."

"If the bill is clearly read, it is apparent that the state is saying prayer is a favored activity to take place during the minute of silence," said Kent Willis, executive director of the Virginia ACLU. "That destroys the neutrality the state is supposed to have toward religion."

Stuart Newberger, the Washington attorney representing the families and working with the ACLU, said the crux of the plaintiff's case revolves around the role of the state, which should not be to say when, how or whether one should pray.

"On the one hand, students have the First Amendment right to pray whenever they want. On the other hand, the state, school system and Congress have no business telling children when to pray, and telling a child how ... to pray," he said. "This minute of silence law was both intended, and by its language makes clear, that its purpose is to put prayer back in schools."

Newberger said the state's intention was clear when Gov. Jim Gilmore said, "our children can bow their heads and pray" when he signed the bill into law.

Virginia state officials deny those claims, instead holding that the minute of silence guarantees students the right to pray at school, but puts no pressure on them to pray or not to pray, instead leaving the students to do what they want during the minute.

"The Act does not require students to do anything or say anything or hear anything. It does not require them to make any gesture or acknowledgment. It only requires them to stay in their seats, to remain silent and not to distract their classmates," state Solicitor General William Hurd said in a statement. "This is not a lot to ask, and it is not unconstitutional.

"There is nothing to fear from a classroom of silent, thoughtful children," he said.

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