Is Silence in the Classroom Really Golden?
As a society, we know that silence is golden. But is a moment of it religious?
In other words, is a mandatory “moment of silence” in public schools a mere neutral period that allows students to relax and get focused for the day ahead, or is it an invitation to pray?
That is the issue federal courts grapple with when this topic arises, which it does with some frequency. The First Amendment to the U.S. Constitution forbids government entities, such as public schools, from favoring religion or prohibiting it unnecessarily. The thin line comes in instances like a moment of silence, an event that is not outwardly devotional, but is not devoid of religious connotations either.
So, courts have to resort to different techniques to discern what’s going on in a moment of silence. They look at the intent of the drafters -- whether state lawmakers or district policymakers. They look at the context of the moment of silence, how it is conducted, time of day, for how long, and how often. They look at how the district treats objectors and the climate created by students and faculty for those who do.
A January decision from Texas has resurrected the controversy. After declaring the issue “a close question” the federal district court in Dallas concluded that the state law had a secular (nonreligious) purpose and was therefore constitutional.
Let me reveal my bias at this point. I believe a moment of silence is simply a cloak for the religious meaning. I look to the social cues for my conclusion. As a legal realist, I see the silent pause as giving a strong clue that prayer is expected. In many religions, silence is a prelude and signal to pray. In the Quaker religion, some full services are conducted in silent reverence; when a person dies, whole stadiums of people pause for “a moment of silence,” implying that the crowd is saying a group prayer for that person’s soul. I cannot get beyond the fact that in America’s culture, prayer and ceremonial silence, conducted en masse, are inextricably tied together.
Because of those external social cues, I view a moment of silence as religious until proven otherwise. The federal courts often have gone the exact opposite way. In several decisions, unless the circumstances are blatantly religious, school officials and state officials are given the benefit of the doubt.
What the courts have said
The leading U.S. Supreme Court ruling on a moment of silence is Wallace v. Jaffree, a 1985 case that struck down Alabama’s mandatory moment of silence law. The court used the Lemon test, named after the 1971 Lemon v. Kurtzman decision. The test requires courts to ask three questions in order:
• Is there a secular purpose?
• Is the primary effect to advance or inhibit religion?
• Does the practice avoid excessive government entanglement?
If the answer is “no” at any stage, the school district or state loses. The high court in the Jaffree decision stopped after the first question. The comments of an Alabama legislator made it clear that he sought to “restore prayer” when proposing the moment of silence.
Two things have happened in the years since Lemon and Jaffree. First, legislators and school board members have gotten more sophisticated and are disguising the religious purpose. Ironically, the way to win in court is for lawmakers or policymakers to keep silent when making the proposal. Second, the U.S. Supreme Court, in subsequent church-state separation decisions, has chipped away at Lemon and its test, and in so doing, it has allowed a more snug relationship between religion and public entities like schools.
Fast forward to Croft v. Governor of the State of Texas, the 2008 ruling by the U.S. Northern District Court in Dallas. The court declared that “… because the Texas legislature was less than clear in articulating the secular purpose of the Texas moment of silence law, the court finds a secular purpose and concludes that the law is constitutional.”
The Texas law, implemented in 2003, requires school boards to conduct a minute of silence following the Pledge of Allegiance to the United States and Texas flags. It states that students can “pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student.”
Secular purposes
One reason courts decline to undertake a more rigorous analysis is due to the Jaffree concurrence by now-retired Justice Sandra Day O’Connor. Courts should accept what politicians profess, she said, if a legislature expresses a plausible nonreligious purpose in the statute, includes it in the legislative history, or if the statute explicitly denies any intent to encourage prayer over any other alternative. O’Connor said courts can tell the difference between a “sham secular purpose and a sincere one.”
Among the secular purposes proponents claim are to help teachers control the classroom, to keep students calm, and to give them time to reflect and prepare. But I believe it is the social cues that are problematic. There are subtle but unmistakable hints that the time to pray is at hand.
Among the social cues:
• The length of time (one minute) is precisely what is used in tribute when someone is ceremonially remembered in death.
• The context. Many students may bow their heads or fold their hands in gestures of prayer or finger the rosary -- none of which is prohibited. That kind of classroom-wide observance could lead to a coercive environment indicating that prayer is the favored activity.
• The moment occurs at the beginning of the day. In the predominant Judeo-Christian tradition, prayer takes place before important events to bless the happenings that will unfold. Laws are careful to specify that the moment of silence will take place at the beginning of the day.
• The moment is done in a ministerial way. Generally, it is led by a school official over the loudspeaker. That means everyone is quiet at the same time throughout the building.
All these and more are persuasive, in my view, that the moment of silence is a religious activity that masquerades on the surface as neutral and secular.
Meanwhile, in Illinois, a tussle has ensued over that state’s moment of silence law. In Sherman v. Twp. High School District 214, a U.S. district court issued a preliminary injunction in November preventing a school district from abiding by the state’s 2007 amendment making the moment of silence mandatory. The court said the law was vague and has the potential to violate both the establishment and free exercise clauses of the First Amendment.
For school board members and superintendents, there is nothing you can do about a law passed by the legislature. What you can do, however, is make sure that observing a moment of silence is a permissible pause. School leaders must ensure that implementation is neutral, allowing those who choose religious observances to do so faithfully, while paying equal respect to students who choose to wordlessly shimmy to the music in their heads.
The U.S. Constitution does not give absolute guidance for every possible occurrence. But the enduring principle is this: Be fair to believers and non-believers alike, and while a lawsuit might still come, the district can feel comfortable that it did everything possible to stay within the bounds of the law.
Edwin C. Darden (EDarden@appleseed network.org), an ASBJ contributing editor, is an attorney and the director of education policy for Appleseed, a national organization focusing on K-12 education law, education policy, and social justice.
Policy questions to consider
• Does your district have detailed regulations about how a moment of silence is to be carried out?
• Is the implementation of the moment consistent from building to building and classroom to classroom?
• Do teachers receive training about what acts are permissible during a moment of silence and which are prohibited?
• Are personal items allowed during the moment, such as crosses, rosary beads, a prayer rug, etc.?
• Is rowdiness during the moment of silence treated like any other misbehavior by a student or is it punished more harshly?
• Are faculty and staff required to observe the moment of silence, or can a teacher whisper to an aide about lesson plans or other school-related subjects?