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Federal Court Rejects 'Moment of Silence' in New Mexico District

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A federal district court ruled this month that a New Mexico law allowing a minute of silence in schools, and one district's implementation of that law, violate the U.S. Constitution's prohibition of government-established religion.

In striking down the moment of silence in Las Cruces schools, Judge Juan G. Burciaga held in Duffy v. Las Cruces Public Schools that the 1981 law promoted prayer in the schools and thus failed a three-part test that determines whether laws violate the Constitution's Establishment Clause.

The law also obstructed a state constitutional provision forbidding the state to "give preference ... to a particular mode of worship," the judge found.

Superintendent Harold Floyd of Las Cruces last week sent a memorandum to the district's teachers instructing them to obey the ruling. Lawyers for the district said it would be "premature" to say whether the district would appeal the decision.

Appeals will be difficult, predicted Dan A. Gonzales, the lawyer for the plaintiffs Jerry Duffy and his son John P. Duffy, because of Judge Burciaga's opinion that the law failed the three-part Establishment Clause test. The test requires that a law not have a religious purpose or effect, or foster entanglement between religion and state.

"He could have left it at the first [test]," Mr. Gonzales said, "but he went on to determine that it flunked all three."

In his decision, the judge also warned teachers throughout the state not to establish similar periods of silence in their classrooms.

'Fair and Proper' Decision

The decision was "fair and proper," said John E. Stablein, the former superintendent, who implemented the law at the direction of the school board. Mr. Stablein said that "religious matters should be within the purview of the home and church."

The district's lawyer, C. Emory Cuddy Jr., had claimed that the moment of silence was not intended for prayer and was therefore constitutional. He said the silent moment was intended for "discipline" and nurturing "intellectual composure."

The judge rejected that argument, citing both the law's statement that prayer is one option for students during the free time, and also letters written by district residents to legislators and newspaper editors in support of public-school prayer.

"The ill lies in the public perception of the moment of silence as a devotional exercise," the opinion stated. "If the public perceives the state to have approved a daily devotional exercise in public-school classes, the effect of such action is the advancement of religion."

The judge also rejected Mr. Cuddy's arguments that the silent moment had produced "startling and dramatic educational benefits" by serving as a transition period be-tween home life and school life.

Questionnaires distributed in Las Cruces schools, Mr. Cuddy said, showed that students held opinions about the moment of silence that were no stronger than their opinions about other events, and they were therefore not coerced to observe a religion.

But Mr. Gonzales, the lawyer for the plaintiffs, countered that he did not need to prove coercion--and that the questionnaires' findings were therefore irrelevent.

Mr. Gonzales also argued--and the judge agreed--that the law's requirement for teacher enforcement entangled the state in religion. That requirement could not only promote religion, Mr. Gonzales said, but also obstruct it.

"What if a kid starts making the sign of the cross? What's the teacher supposed to do? Stop him because it's religious?" he said.

The Las Cruces community strongly supported the silent moment, but more teachers opposed than supported it, court testimony suggested. Some teachers did not observe the moment, and many children were said to be whispering or otherwise ignoring it.

A similar moment-of-silence law was struck down in Tennessee, and a case is pending in New Jersey.

U.S. Supreme Court Justice Lewis Powell, meanwhile, extended his injunction against Alabama's school-prayer law, which he issued on Feb. 2, until a decision by a federal district court can be reviewed by the U.S. Court of Appeals for the 11th Circuit. The Justice, after reviewing court briefs, declared last week that school prayer is unconstitutional "unless and until" the Supreme Court reverses its previous decisions.

Justice Powell said U.S. District Judge W. Brevard Hand "was obligated" to follow 1962 and 1963 Supreme Court rulings against state-prescribed prayer. Judge Hand dissolved an injunction against the laws last month, saying the Court had misinterpreted the Constitution in its previous school-prayer rulings.

Public-school prayer is contested.

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