The 5th U.S. Circuit Court of Appeals will hear arguments Feb. 3 in a suit challenging the constitutionality of a Texas law requiring public schools to observe “one minute of silence” during each school day so that students can pray and engage in other silent activities that do not distract other students.

In January 2008, U.S. District Judge Barbara Lynn of the Northern District of Texas in Dallas found in Croft, et al. v. Perry, et al. that Texas Education Code §25.082(d) passes muster under the Establishment Clause of the First Amendment of the U.S. Constitution.

W. Dean Cook, attorney for plaintiffs David and Shannon Croft, disagrees with the district court’s decision.

Cook, an attorney with the Cook & Cook Law Offices in Richardson, says a statute in effect from May 1995 until Sept. 1, 2003, allowed school districts to provide a period of silence at the beginning of the school day during which students could reflect or meditate. When state lawmakers passed S.B. 83 in 2003, enacting §25.082(d), Cook says, “they basically decided to ratchet it up a notch” by adding the word “pray” to the list of students’ options and by making the minute of silence mandatory.

Under §25.082(d), school districts must provide for observance of the minute of silence after students recite the pledges of allegiance to the U.S. and Texas flags. The statute also requires teachers to ensure that each student remains quiet during the one-minute period and does not distract or interfere with other students.

“It just seems facially unconstitutional to me,” Cook says.

James C. Ho, Texas’ solicitor general, will argue Croft on behalf of Gov. Rick Perryat the 5th Circuit. In a Jan. 26 e-mail, Dirk Fillpot, a spokesman for the Texas Office of the Attorney General (OAG), declines Texas Lawyer ‘srequest to interview Ho.

In an Aug. 4, 2008, OAG news release announcing the filing of Perry’s brief to the 5th Circuit, Ho is quoted as saying, “The plaintiffs’ argument turns the First Amendment on its head. Their reasoning would condemn any law that prevents discrimination against religion by expressly protecting the right of students to ‘pray’ — including numerous federal and state laws that protect students against religious hostility.”

Cook questions what protection is afforded to students whose religion requires them to chant prayers audibly or to kneel on prayer rugs when they pray. “Is a teacher going to allow that?” he asks. “It’s pretty clear that in not all religions people sit and pray without auditory words.”

The U.S. District Court for the Northern District of Illinois, Eastern Division, recently held unconstitutional that state’s Silent Reflection and Student Prayer Act.

As noted in U.S. District Judge Robert W. Gettleman’s Jan. 21 opinion in Sherman v. Township High School District 214, et al., the clear language of the Illinois statute compels each classroom teacher to ensure that every student uses the mandatory period of silence called for in the statute for prayer or reflection. That requires teachers of students in kindergarten or the primary grades to tell their students what is meant by prayer or reflection, according to the opinion.

“The plain language of the Statute, therefore, suggests an intent to force the introduction of the concept of prayer into the schools,” Gettleman wrote in Sherman.

Cook says the Sherman decision has no precedential value in the 5th Circuit. But like Croft, the Illinois case is likely to be appealed, he says.

Three-Prong Test

In the Texas case, the Crofts, parents of three minor children attending school in the Carrollton-Farmers Branch Independent School District, alleged in their March 10, 2006, complaint that one of their children informed them that on at least one occasion when other children were not being quiet during the one-minute of silence mandated by §25.082(d) that “their teacher had told them to be quiet as this is a time for prayer.”

Lynn’s 2008 opinion provides the following background on the case. The Crofts had alleged in their complaint that the minute of silence law is unconstitutional under the Establishment Clause, both as applied and on its face. Their suit originally named the Carrollton-Farmers Branch ISD as a defendant. The district court dismissed the Crofts’ as-applied claims against the school district in November 2006, because the Crofts failed to plead that the district enacted the minute of silence policy “with deliberate indifference to the ‘known or obvious consequences’ that constitutional violations would result.” The Crofts agreed to a dismissal of all their claims against the school district at the Aug. 1, 2007, oral arguments in the case, since they challenged the constitutionality of the statute as enacted by the Legislature, not the policy enacted by the school district. The Crofts moved for summary judgment, and Perry filed a cross-motion for summary judgment. The district court granted Perry’s motion, and the Crofts appealed to the 5th Circuit.

As noted in the opinion, Lynn found that §25.082(d) satisfies the three-prong test that the U.S. Supreme Court created in 1971′s Lemon v. Kurtzman. Lynn wrote that the Legislature amended §25.082 to provide time “for the full panoply of thoughtful contemplation, which the Court finds to be a secular legislative purpose. She further noted that “the primary effect of the amendment is not to advance or inhibit religion; and that the statute does not promote an excessive entanglement between government and religion.”

But while Lynn found a secular purpose for §25.082(d), she wrote in the opinion that Croft “presents a close question because the Texas legislature was less than clear in articulating the secular purpose of the Texas moment of silence law.”

According to the 5th Circuit’s Web site, the Crofts filed their appeal on Jan. 30, 2008. The Crofts argue in their brief to the 5th Circuit that §25.082(d) fails all three prongs of the Lemon test. The fact that the text of §25.082(d) contains the word “pray” is sufficient, standing alone, under the U.S. Supreme Court’s 1985 decision in Wallace v. Jaffree to show that the statute has no secular purpose, the Crofts argue in the brief. In its 6-3 decision in Jaffree, the high court held that an Alabama law authorizing a daily period of silence in the public schools for meditation or prayer was an endorsement of religion lacking a clearly secular purpose and thus was a law respecting the establishment of religion in violation of the First Amendment.

Perry argues in his brief to the 5th Circuit, “Nothing in the Establishment Clause forbids moments of silence in public schools — let alone the broader series of opening exercises described in S.B. 83.” Quoting from Jaffree, Perry contends that states “may protect every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day.”

In his brief, Perry cites then-Justice Sandra Day O’Connor’s observation in her concurring opinion in Jaffree that “during a moment of silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers and thoughts of others. . . . It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren.”

A Close Question

Hiram Sasser, litigation director of Plano-based Liberty Legal Institute, will argue before the 5th Circuit in Croft on behalf of four families who filed an amici curiae brief in support of §25.082(d). Sasser says, “Our basic argument is that the minute of silence law provides protection and accommodations for students who would like to pray silently in their schools but are afraid to do so.” There is hostility to religion in the schools, he says.

“Public schools have not had a glowing history of welcoming the exercise of civil rights on campus, and they certainly have not been willingly accommodating of religious speech,” Sasser’s clients argue in their amici brief.

The parents allege in the amici brief that a teacher in the Katy school district asked students to say a word that came to mind when they heard the word “Easter.” As alleged in the amici brief, the teacher reprimanded a first-grade student who said “Jesus” and told the student not to ever say that word again in school.

The American Civil Liberties Union, ACLU Foundation of Texas, and Americans United for Separation of Church and State also filed an amici brief with the 5th Circuit in Croft but will not present oral arguments in the case.

Fleming Terrell, staff attorney for the ACLU Foundation of Texas, says students were able to pray during the period of silence before the Legislature enacted §25.082(d).

State Education Code §25.901, which the Legislature enacted in 1995, provides: “A public school student has an absolute right to individually, voluntarily, and silently pray or meditate in school in a manner that does not disrupt the instructional or other activities in the school. A person may not require, encourage, or coerce a student to engage in or refrain from such prayer or meditation during any school activity.”

Terrell says the ACLU sees no reason to add prayer to the list of students’ options during the minute of silence, “other than to encourage prayer, which is impermissible under the First Amendment.”

She also contends that the Legislature enacted the minute of silence law with “impermissible motives.”

As alleged in the ACLU amici brief, state Sen. Jeff Wentworth, R-San Antonio, author of 2003′s S.B. 83, introduced the bill in the Senate Education Committee by stating that the Supreme Court “over four decades ago, ruled that audible prayer in public schools is unconstitutional. And most Texans disagreed with that Supreme Court decision then and still disagree with it.”

But according to Lynn’s 2008 opinion in Croft , Wentworth also said, “I do want to emphasize this is not — this is not — for the purpose of the legislative intent, this is not a prayer bill. . . . It’s an opportunity to give people a chance to spend 60 seconds on a daily basis to reflect or meditate or pray.”

Lynn also wrote in the opinion that Wentworth “repeatedly emphasized that he wanted to pass a law that would not be struck down by the Supreme Court.”

Wentworth says he did not intend S.B. 83 to be a “backdoor way” to get prayer back into the schools. The language of the bill makes it clear that students can reflect, pray, meditate or engage in other silent activity, Wentworth says. “They can stand there for 60 seconds and worry about the next algebra test,” he says.

State Rep. Dan Branch, R-Dallas, S.B. 83′s House sponsor, says there is a secular purpose in having a minute of silence. The idea of observing a period of silence after students recite the pledges of allegiance to the two flags is to give them an opportunity to focus on the many sacrifices people have made to protect the nation and the state, says Branch, a shareholder in Winstead.

Lynn wrote in the opinion, “It is clear to the Court that the Texas legislature intended to pass a constitutional law, and that its legislators were not acting in defiance of Supreme Court precedent.”

Although Lynn noted in the opinion that “it is a close question,” she finds “legitimate the secular purpose of allowing all types of thoughtful contemplation and concludes that this purpose is supported by the legislative history and sufficient to withstand the Lemon test.”

Dru Stevenson, a South Texas College of Law professor and an ordained minister in an evangelical Christian church, says the district court “did something novel or new which other courts following the Lemon decision have not done.” The reason the district court found that the minute of silence law passes muster, Stevenson says, is because state legislators were trying to fit within what the Supreme Court wanted.

“I’ve never seen a court validate intentions of the Legislature by saying, ‘Well, it looks like they were trying to adhere to the requirements of Lemon, therefore we’ll give them credit for trying at least,” Stevenson says. “It’s hard to see how that’s different from just a pretext.”

Stevenson says, “There is no evidence to indicate that any kid who has wanted to pray or do a meet-us-at-the-flagpole thing or something like that has been forbidden to do so by a school. So it’s hard to see why we needed to ratchet up the statute . . . to permit people to pray.”

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