Moment Of Litigation: Mandatory Moment Of Silence In Texas Schools Faces Court Test

A Texas law that requires public school students to participate in a "moment of silence" was up for discussion yesterday in the 5th U.S. Circuit Court of Appeals.

The court will soon rule on whether the law is constitutional, but Americans United already weighed in earlier this year with a friend-of-the-court brief. We made it clear that this Texas law is just another way to interject religion into public schools—a blatant violation of church-state separation.

In 2003, Texas legislators enacted amendments to the education code, making the moment of silence mandatory. They also changed the list of designated options for students during the moment of silence from "reflect or meditate" to "reflect, pray, meditate, or engage in any other silent activity...."

In 2006, David and Shannon Croft sued Gov. Rick Perry and Carrolton-Farmers Branch Independent School on behalf of their children who attend the school. They have now appealed the district court's ruling upholding the law to the 5th Circuit.

Adding the word "pray" to the statute shows that the purpose of the law is no longer secular, W. Dean Cook, attorney for the parents, explained to the panel of judges yesterday.

AU made the same argument in its brief opposing the amendment.

"Students were already allowed to pray, meditate, or reflect under the statute before it was amended," said the Rev. Barry W. Lynn, AU executive director. "The addition of the word 'pray' where it wasn't needed clearly shows that legislators intended to promote religion, and that's not their job."

There are many concerns over "moment of silence" laws, which have now popped up in 26 states around the country. Texas' law is especially problematic because it is the only one that requires the "moment" every day along with the Pledge of Allegiance. There are no safeguards to ensure that those who do not wish to participate in the "moment" are not harassed or ostracized for being "anti-religious."

In defending the law, Texas Solicitor General James Ho said the legislators have no intent to interject religion into schools, but just want to "avoid confusion."

"These opening exercises give students the opportunity to start each day on a proper footing," Ho said. "Some will take time to prepare mentally for the day ahead. And others may use this opportunity to exercise their faith through silent, non-disruptive prayer."

But students that need a moment in the day to organize their thoughts can do so any time. Students can also take the time to pray silently on their own break. A required moment of silence isn't necessary to serve that purpose.

Thankfully, it seems many courts aren't buying into Ho's explanation. U.S. District Judge Robert W. Gettleman struck down a similar moment of silence law in Illinois just last month.

"[I]f the sponsors of the Illinois Statute truly intended to impose a moment of silence for reflection they would have proposed amending the Statute to ensure compliance with the Constitution," Gettleman said. "They could have easily removed all references to prayer and all requirements that students be told that prayer is one of two options. That they did not is telling. The availability of a secular alternative is an obvious factor to be considered in deciding whether the government's choice amounts to an endorsement of religion."

Hopefully, it's just a matter of time before the Texas law is called out for what it really is. Judge Gettleman was right when he declared the Illinois legislature's stated purpose for this law "a sham." It's not hard to see it is in Texas, too.