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Federal Judge Upholds Minute of Silence
By Melisa G. Michelsen

Recently, a federal judge upheld Virginia's new law requiring public schools to observe a minute of silence every day. Chief Judge Claude M. Hilton held that the daily minute of silence law does not violate the First Amendment separation of church and state provision.

In March 2000, the Virginia House overwhelmingly passed a bill making a minute of silence mandatory in schools. Governor Gilmore supported the measure and signed the bill into law, stating that the minute of silence is a good way to help instill character in the lives of young people. The minute of silence law went into effect on July 1^st of this year and provides that the school board of each school division shall establish the daily observance of one minute of silence in each classroom. Va. Code Ann. § 22.1-203 (Michie 2000). During the minute of silence, students may meditate, pray, or engage in any other silent activity.

Since 1976, Virginia has had a law allowing a minute of silence in Virginia schools. The old law, however, was voluntary and most school divisions around the Commonwealth chose not observe a moment of silence as a part of the school's daily program. Accordingly, the new mandatory language of the minute of silence statute has brought about a change in most public schools daily routine as well as quite a bit of controversy.

Soon after the law was enacted, the American Civil Liberties Union (ACLU), on behalf of 10 public school students, brought suit in the United States District Court in Alexandria, Virginia, condemning the law as unconstitutional. The ACLU and other critics of the law claim that the new law is a veiled attempt to force students into prayer in school in violation of the U.S. Constitution. In their lawsuit, the students argue that because the law uses the word 'pray' as one of the activities allowed during the minute of silence, it shows that the state is favoring organized school prayer. Attorney General Mark Early, who is responsible for the defense of the law, disagrees. He argued that the law does not promote or advance prayer or religion in school. He stated that the legislature included the word 'pray' simply to make clear that the state was not discriminating against religion. The Attorney General's Office intends to defend the law at every level.

Chief Judge Hilton upheld the law because it was enacted for a secular purpose, does not advance or inhibit religion, nor is there excessive entanglement with religion. Judge Hilton further noted that the students may think as they wish and this thinking can be purely religious in nature or purely secular in nature. All that is required is that they sit silently. Nothing and no one is favored in the act. Despite Judge Hilton's ruling, the ACLU plans to appeal, possibly all the way to the United States Supreme Court.

If the law is appealed to the United States Supreme Court, it will likely be upheld as it was not enacted to promote prayer in school. Since 1962, the Supreme Court has ruled that organized school prayer is unconstitutional. In 1985, the Supreme Court reiterated this ruling and struck down a similar minute of silence law in Alabama. However, the wording the Supreme Court's opinion left open the possibility that some minute of silence laws could be constitutional. The Supreme Court generally allows minute of silence laws and only strikes down states explicit efforts to introduce prayer into schools. Indeed, about half the states around the country have minute of silence laws. The law's sponsor and supporters state that the law was enacted in response to the tragedy of Columbine in an effort to stem the increase in violence in public schools. Many legislators hail the law as a way to instill values in young people and indicate that the law was not enacted to create state sponsored prayer or infuse religion into the classroom. Given the secular purpose of the law and the current Justices of the Supreme Court, Virginia's mandatory minute of silence will probably pass constitutional muster.