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ARGUED FEBRUARY 10, 2010

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

In 2007, Illinois amended Section 1 of the Silent Reflection and Student Prayer Act making mandatory a period of silence in public schools; prior to this amendment, teachers had the option of observing a period of silence at the beginning of the school day. After the Illinois legislature amended Section 1, Dawn Sherman, through her father, Robert I. Sherman, sued Christopher Koch in his official capacity as Superintendent of the Illinois State Board of Education (“Koch”), and Township High School District 214 (“District 214″), alleging that Section 1 was facially unconstitutional. The district court certified a plaintiff class of all public school students in Illinois, with Sherman as the class representative (“Sherman”), and a defendant class of all public school districts in Illinois, with District 214 as the class representative. The parties filed cross-motions for summary judgment. The district court granted Sherman summary judgment, concluding that Section 1 violated the first and second prongs of the Lemon test and thus the Establishment Clause. Specifically, the district court held that Section 1 lacked a secular purpose and that it had the primary effect of advancing or inhibiting religion by favoring religions which engage in silent prayer (over religions which do not). The district court further held that Section 1 was unconstitutionally vague in violation of the Due Process Clause of the Constitution because it did not specify the length of the period of silence, how the period of silence would be implemented, or the penalty for violating the statute. The district court then permanently enjoined the defendants from implementing or enforcing Section 1. Koch appeals.

 
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