A federal appeals court has upheld an Illinois law requiring schools to observe a daily period for “silent prayer or for silent reflection on the anticipated activities of the day.”
The law has been on the books in various forms since 1969, but in 2007, over the veto of then-Gov. Rod Blagojevich, the Illinois legislature amended it to tell school districts they “shall observe” instead of “may observe” the daily period.
The law was challenged by Robert S. Sherman and his daughter, Dawn I. Sherman, as a violation of the First Amendment’s prohibition against government establishment of religion.
A federal district court in Chicago struck down the law last year. But in an Oct. 15 decision, a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, voted 2-1 to uphold the law. The majority said the Illinois statute was unlike the Alabama moment-of-silence law struck down by the U.S. Supreme Court, which held in the 1985 case of Wallace v. Jaffree that Alabama lawmakers had no secular purpose but instead an asserted legislative interest in returning prayer to the public schools.
“Conversely in this case, [Illinois] has offered a secular purpose for Section 1—establishing a period of silence for all school children in Illinois to calm the students and prepare them for a day of learning,” U.S. Circuit Judge Daniel A. Manion wrote in the majority opinion in Sherman v. Koch.
Manion noted that since the Wallace decision, four other federal appeals courts have considered moment-of-silence laws. New Jersey’s law was struck down, but laws in Georgia, Texas, and Virginia have been upheld.
The Illinois law doesn’t specify a length of time for the period of silence, beyond describing it as “brief.” It states that the period is “an opportunity for silent prayer or for silent reflection,” but also says the period “shall not be conducted as a religious exercise.”
The fact that the Illinois law mentions prayer as an option for students during the daily period of silence does not make it invalid under the Establishment Clause, Manion said. Agreeing with a defense of the law by Illinois Superintendent of Public Instruction Christopher Koch, Manion said, “It was important to note that prayer is a permissible option to negate any impression that teachers or students may have that students were not allowed to pray (silently) during the period of silence.”
Writing in dissent, Judge Ann Claire Williams said she was troubled by the statute’s suggestion that the mandatory silence period is an opportunity for “silent prayer” or for “silent reflection on the anticipated activities of the day.”
“Why mention prayer at all?” Williams said. “While I recognize that we assess a legislature’s stated purpose with some deference, let’s call a spade a spade—statutes like these are about prayer in schools. In my view, the legislature’s decision to make the act mandatory represents an effort to introduce religion into Illinois public schools, couched in the ‘hollow guise’ of a mandated period of silence.”
A version of this news article first appeared in The School Law Blog.