By Bruce Rosen
Special to Education Week
Newark--A federal district judge has declared New Jersey’s “moment-of-silence” law an unconstitutional attempt to circumvent the U.S. Supreme Court’s ban on state-sanctioned prayer in public schools.
The ruling by U.S. District Judge Dickinson R. Debevoise was the third such ruling by a federal district judge against similar state laws within the past year. But unlike the laws invalidated in New Mexico and Tennessee, the New Jersey statute does not mention prayer, and supporters deny that it was an effort to re-introduce prayer into public schools.
Nevertheless, Judge Debevoise found that the intent of the law was to promote prayer. “I think a showing has been made that New Jersey’s minute of silence does jeopardize the religious liberties of members of the community and breaches the proper degree of separation between the spheres of religion and government,” he wrote in an opinion handed down on Oct. 24.
The law, which mandates a full minute of silence at the start of each school day, was enacted in December 1982 when the legislature overrode the veto of Gov. Thomas H. Kean. Judge Debevoise issued a temporary restraining order against its enforcement on Jan. 10, after a public-school teacher and a handful of parents and students represented by the American Civil Liberties Union filed suit. The suit was filed against Saul Cooperman, state commissioner of education, the New Jersey Department of Education, and the school boards in Edison and Old Bridge townships. The New Jersey General Assembly and Senate intervened on behalf of the defendants.
After Governor Kean’s veto, state Attorney General Irwin Kimmelman refused to defend the law, saying he believed it to be unconstitutional. The legislature then hired its own attorneys at an estimated cost of more than $150,000 so far.
Appeal Is Likely
Legislative leaders said an appeal is likely, and they sought to minimize the cost of the defense. “It’s only something that affects a million kids,” said Alan J. Karcher, speaker of the General Assembly. He said he has seen data from public-opinion polls showing that as many as 90 percent of New Jersey residents support the law.
Mr. Karcher, himself an attorney, said that he had anticipated that Judge Debevoise was predisposed to rule against the law. “Our judgment was that it would have to be resolved by the U.S. Supreme Court,” he said.
The law was challenged by Jeffrey May, a science teacher in the Edison schools who was reprimanded for refusing to obey the law, and by parents and students from the Princeton and Old Bridge school districts.
“This is a resounding victory,” said Anne P. McHugh, one of the volunteer aclu. lawyers. “We are very pleased with the result.”
Jeffrey Fogel, executive director of the New Jersey aclu, said that while the decision affects only New Jersey, Judge Debevoise’s opinion, taken together with similar rulings in Tennessee and New Mexico, will influence federal judges elsewhere.
Judge Debevoise did not award legal fees to the aclu, saying he thought “the case served a very valuable public purpose.”
Mr. Fogel said the aclu was not against a moment of silence per se, but was against the legislature’s mandating it for all public-school children. Governor Kean, who also said he was pleased with the ruling, said the law was unnecessary because any teacher can ask his or her students for a moment of silence at any time.
A mandatory moment-of-silence policy has been in effect for several years in the Sayreville School District as well as several others throughout the state. The Sayreville board of education will discuss the ruling with its attorney, according to Marie Parnell, superintendent of schools. Meanwhile, the moment of silence will continue as usual, she said.
‘Bad Education’
Judge Debevoise heard witnesses on the issue over four days in mid-September, including educators, clerics, and theologians, who testified that the law was “bad education and bad religion.”
The U.S. Supreme Court has developed a three-part test for determining whether a state law violates the First Amendment’s prohibition against the establishment of religion by the state: The law must have a secular purpose; its primary effect must not be to aid religion; and it cannot result in government entanglement with religion.
“The statute under review does not pass muster under any of these criteria,” wrote Judge Debevoise. “This obvious attempt to cross the forbidden line becomes all the more apparent in light of the pretextual nature of the secular purpose advanced in this case. True, [the legislature’s] witnesses testified that the [moment of silence] can serve as a useful boundary between nonschool activities and schoolwork. However, only the utterly naive would conclude that the bill’s advocates were fighting passionately for establishment of such a boundary.
“It is abundantly clear that once the Governor’s veto had been overridden and litigation commenced, [the law] became a statute in search of a secular purpose,” he said.
Judge Debevoise said that, in light of repeated attempts by the legislature to enact a moment of silence for the purpose of prayer, “I think it is clear that the omission of the word ‘prayer’ is a cosmetic change only, having no substantial effect.”
He said the state had injected itself into religious matters “by designating a time and a place when children and teachers may pray if they do so in a particular manner and by mandating conduct by all other children and teachers so that the prayers may proceed uninterrupted in their presence.”
Judge Debevoise noted that the bill’s sponsor, Assemblyman Jimmy Zangari, had introduced three other bills on related matters, including a proposed amendment to the U.S. Constitution permitting prayer in public places and various proposed state laws allowing organized prayer in public schools. Mr. Zangari said he was disappointed by the decision and hopes it will be appealed. “It is a sad day when a single judge can deprive our children of the right to think,” he said.
Mr. May, the teacher reprimanded and threatened with disciplinary action for refusing to obey the law, said that he felt he had no choice and was “just trying to do the right thing.”
“I supported the Constitution,” he said. “If anyone should be reprimanded, it should be legislators who knowingly enacted an unconstitutional law.”
