Moment of silence on hold in District 214

A federal judge who decreed Wednesday that students in Northwest Suburban School District 214 can no longer have a daily moment of silence may today decide today to expand that decision to apply to all public schools in the state.

U.S. District Judge Robert Gettleman ruled Wednesday that the state's "Silent Reflection and Student Prayer Act" was so vague that it might encourage some teachers to suggest prayer to students.

That, he said, would violate the U.S. Constitution's First Amendment, which says that government "shall make no laws respecting an establishment of religion."

Gettleman said he did not think every possible incarnation of a law dictating a moment of silence in schools would be unconstitutional. But because the current law doesn't specify how long a moment of silence is, whether students can be physically demonstrative during the prayer and reflection time, or what happens to a student who is not silent, the law was too vague.

"Persons of common intelligence must guess at its meaning," Gettleman said.

Teachers who are unsure how to proceed in administering the moment might therefore think they'd be safe in reading the short law, Gettleman speculated. But that's where they'd get into trouble, he said, because the law says the moment of silence "shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day."

What that tells a student, Gettleman said, is "you have two choices," and one of them is religion.

Even if teachers did not feel compelled to read the law, students are curious and will undoubtedly ask what they're supposed to do during the moment. One option is to tell them to think about praying, which isn't permissible, Gettleman said.

The other is to tell the student the moment is "for silent reflection on the anticipated activities of the day."

"Try telling that to your average 9-year-old," Gettleman scoffed.

The way the law is written, a child who used the time to think about the Bears game the previous night would technically be in violation of the law, he said.

And what if, during the moment, a Christian student took out a Bible, or a Muslim brought out a prayer rug to worship, Gettleman asked.

"Would that child be violating the moment of silence?" Gettleman asked.

Gettleman's ruling was prompted by a lawsuit filed by Dawn Sherman, a freshman at Buffalo Grove High School, and her father, atheist Rob Sherman.

Rob Sherman hailed the ruling.

"This case is about balancing the rights of children who wish to pray with the rights of children who do not wish to pray," he said.

But some parents in the Buffalo Grove community say the law does just that.

Chris Lotzer, the parent of a Buffalo Grove high school student, wrote the Daily Herald expressing frustration with Sherman's efforts to derail the law.

"'Reflection' in the dictionary has nothing to do with prayer. If students choose to pray during their moment of reflection, or moment of silence, that is their choice," Lotzer wrote.

The school district itself has remained neutral on the matter.

Venetia Miles, spokeswoman for District 214, said the administration has taken the viewpoint that it will do whatever the law asks without debating the merits of the moment of silence itself.

"From the very beginning, the district's position has been we'll comply with the law until we're told otherwise," she said. "We haven't taken a position of the constitutionality of the law."

Attorneys for Sherman Wednesday asked Gettleman to immediately expand his decree statewide, but he held off on doing so, in part because he felt no one was adequately representing the legislators who wrote the law.

While a representative of Illinois Attorney General Lisa Madigan was in court Wednesday, he said he was there to simply defend the state school Superintendent Christopher Koch, and that the office had not decided to intervene on behalf of the law itself.

The attorney general's office had been asked at an initial court hearing two weeks ago whether it intended to defend the law, and it had no specific answer then, either.

"The Attorney General has declined to intervene … from what I can tell," Gettleman said Wednesday.

He encouraged the office's representative, Thomas Ioppolo, to come back to court today at 11 a.m. with a more definitive answer.

Lisa Madigan's office said it never intended not to defend the law, but was simply deciding which legal avenue was best to pursue. Because the statute so vastly deviated from normal legislation in that it did not name any party responsible for enforcing the law, there is technically no constitutional officer responsible for it. The office must now determine if it wants to file a motion to intervene or pursue some other avenue of defense.

"We've been defending the state law and will continue doing so. We will now determine the proper procedural posture to take going forward," said Madigan's chief of staff, Ann Spillane.

Spillane said Ioppolo had written a 15-page brief defending the constitutionality of the law and had argued as much in court Wednesday.

In fact, Gettleman said, for someone who hadn't officially intervened on behalf of the law yet, Ioppolo's brief was so persuasive that it forced Sherman's lawyers to concede to much of his arguments.

Sherman's attorney, Greg Kulis, did in fact concede, for example, that not every moment of silence law is unconstitutional on its face.

Still, Gettleman worried about making rulings on the law without someone in court to argue for the legislature.

"They (legislators) deserve the respect of an adversarial proceeding," Gettleman said. "This is a matter of great public concern. It deserves prompt … adjudication, and frankly it deserves representation."