Moment of Silence - Bown v. Gwinnett County School District (1997) / Brown v. Gilmore (2001)

Moment of Silence

Two cases in the early 1960s largely eliminated state-sponsored prayer from public schooling. Engel v. Vitale (1962) and Abington v. Schempp (1963) are to this day touted by the far right as responsible for having kicked God out of schools – leading inevitably to sex, drugs, violence, rock’n’roll, corduroy, divorce, the pill, AIDS, the Clintons, terrorism, and a Kenyan sleeper-cell Mooslim illegitimately seizing the White House for eight long, painful years. 

The solution, of course, is to get God back IN our schools by requiring regimented recitation of state-approved chants. He LOVES those! Do this, we are assured, and America’s problems will vanish faster than you can say “civil liberties!” 

Alabama led the way in the 1980s with a series of legislation which eventually led to Wallace v. Jaffree (1985), the only “Moment of Silence” case to reach the Supreme Court to date. The Court determined that the state could mandate a “moment of silence” during the school day, but could not lead or even encourage prayer during that time. 

The goals of Alabama’s legislation were no secret – state legislators ran on promises to get prayer back into schools, or as close as they could get it. That’s largely what stifled further establishment in Alabama – the Court refused to pretend the history and rhetoric associated with legislation didn’t exist while considering its constitutionality. 

Legislative leaders in other states took note and began exercising greater caution as they argued for moments of silence of their own. Suddenly this 60-second period would promote non-violence and academic reflection and gluten-free living and all sorts of things. 

A decade after Wallace, Georgia passed its own version of a “moment of silence.” It was challenged by a classroom teacher and ended up in the Eleventh Circuit Court of Appeals as Bown v. Gwinnett County School District (1997). The Court determined that the Moment of Quiet Reflection in Schools Act did NOT violate the Establishment Clause. 

The Court’s written opinion is unremarkable, but includes some details of note, such as this bit from what they call the Act’s “uncodified preamble”:

The General Assembly finds that in today's hectic society, all too few of our citizens are able to experience even a moment of quiet reflection before plunging headlong into the day's activities. Our young citizens are particularly affected by this absence of an opportunity for a moment of quiet reflection. The General Assembly finds that our young, and society as a whole, would be well served if students were afforded a moment of quiet reflection at the beginning of each day in the public schools.

It's an absurd bit of glossy nonsense, but it’s constitutional nonsense. We could all probably benefit from drinking more water as well, but I notice no one’s mandating a moment of refreshing hydration each morning. But whatever.  

Also in the ‘History of the Case’:

Senator David Scott, the primary sponsor of the Act… represented an urban district in Atlanta, Georgia. He was the Chairman of the Senate Education Committee… and a member of the State Violence Task Force Committee to prevent violence in schools. Senator Scott introduced {the Moment of Silence bill} as a part of a package of legislation aimed at reducing violence among Georgia's youths.

I realize I’m a bit cynical, but 60 seconds of mandatory head-bowing seems a poor substitute for addressing poverty, mental health, drug addiction, sexual abuse, etc. But perhaps I assume too much. 

Senator Scott had observed that after several killings on school campuses, students came together to have a moment of silent reflection. Noting that this moment of silence seemed to be beneficial and calming, Senator Scott believed that providing students with an opportunity for silent introspection at the beginning of each school day would help to combat violence among Georgia's students.

I guess we’re lucky Georgia didn’t mandate a daily mock funeral ceremony using the same reasoning. 

During debates over the bill, some state legislators liked it specifically because it was a step towards school prayer. Others opposed it for the same reason. Wisely, many in favor of the bill went on record arguing that it didn’t promote school prayer or have any religious purpose at all. That gave the Court enough cover as to the purpose of the bill that they could in good conscience consider it “religiously neutral.” 

The teacher who initiated the case, Brian Brown, argued that the law violated the Establishment Clause and cited the “Lemon Test” to prove it. No surprise, then, that the 11th Circuit uses Lemon to respond.

The first prong of the Lemon test requires that the challenged statute have a “clearly secular purpose” … However, the statute's purpose need not be exclusively secular... A statute violates the Establishment Clause if it is “entirely motivated by a purpose to advance religion” …

To ascertain a statute's purpose, it is, of course, necessary to examine the language of the statute on its face... It is also appropriate to consider the legislative history of the statute and the specific sequence of events leading up to the adoption of the statute.  

The Court cites both the law itself and its context and presentation by way of establishing that the law explicitly avoids promoting religious activities during this magical minute. At the same time, should a child choose to bow their head or clutch their rosary beads during the moment of life-altering focus and de-violencing, the state may not discourage them from so doing. 

The Court specifically addresses the difference in dynamics between this situation and Jaffree – largely distinguished by what was said in debates leading up to passage, and contemporaneous legislation with similar goals. 

I cannot emphasize this enough. All subsequent efforts to nudge religious rituals back into government schooling will be made with an awareness that public arguments and discussions may be factored in to any resulting constitutional challenges. Lawmakers are essentially encouraged to be disingenuous if they wish to pass judicial muster. 

In Jaffree, the primary sponsor of the Alabama statute and the Governor of Alabama both explicitly conceded that the purpose of the Alabama statute was to return prayer to the Alabama schools, and Alabama failed to present any evidence of a secular purpose… In contrast, in this case, the primary sponsor of the Act indicated that the Act had a secular purpose. 

It is true, as Bown argues, that some legislators expressed the desire to return prayer to Georgia's schools and supported the Act for this reason. However, it is also true that other legislators felt that the Act did not involve school prayer…

You get the idea. 

Under the second prong of the Lemon test, a statute violates the Establishment Clause if its primary effect is to advance or inhibit religion...

The announcement made over the school intercom by Principal Hendrix indicated only that there would be a moment of silence to reflect on the day's activities. This announcement in no way suggested that students should or should not pray silently during the moment of quiet reflection… 

There is no indication in this case that any teacher encouraged prayer in violation of the guidelines stated in the Administrative Bulletin. There is no evidence in this case that any students were exhorted to pray, favored for praying, or disfavored for not praying…

The Court then contrasts this dynamic with situations in which students may feel indirectly, if not explicitly, coerced, such as in Lee v. Weisman (1992) and finds they’re not at all similar. There’s no advancement of religion here. 

The third prong of the Lemon test dictates that the statute must not foster an excessive government entanglement with religion… 

We conclude that there is no excessive entanglement in this case. 

Yeah, that was going to be a tough sell at best. 

All that the Act requires is that the students and the teacher in charge remain silent during the moment of quiet reflection. Teachers are not required to participate in or lead prayers, nor are they required to review the content of prayers during the moment of quiet reflection…

They’re not only “not required;” they’re specifically prohibited from so doing. 

The fact that a teacher must stop a student who prays audibly or otherwise makes noise during the moment of quiet reflection does not result in excessive government entanglement with religion. There are many times during any given school day when teachers tell their students to be quiet and when audible activity of any kind is not permitted. The fact that this particular period of silence is mandated statewide does not create entanglement problems.

A few short years later, Virginia took their turn. The resulting case, Brown v. Gilmore (2001), was heard and decided by the Fourth Circuit Court of Appeals and the outcome was basically the same. It’s notable for being the first instance I’ve come across of the specific phrasing used by many state legislatures since, including Oklahoma’s. Here’s how Oklahoma’s statute reads, in case you’re curious:

The board of education of each school district shall ensure that the public schools within the district observe approximately one minute of silence each day for the purpose of allowing each student, in the exercise of his or her individual choice, to reflect, meditate, pray, or engage in any other silent activity that does not interfere with, distract, or impede other students in the exercise of their individual choices.

But there’s more…

The Attorney General of the State of Oklahoma is hereby authorized to intervene in any legal proceeding to enforce the provisions of this act and shall represent any school district or employee named as a defendant therein.

Ha! Defensive, much?

Several similar cases have produced comparable results in other federal courts. They each have their own quirks, but the pattern is clear. 

With the sudden national lurch to the right (and away from even token concern with civil liberties or the sincerity of inflicted faith), it remains to be seen what may come next. For now, however, the “moment of silence” – a pointless exercise designed only to allow legislators to walk right up to that line separating church and state and kick dirt on its trousers – is on solid constitutional ground. 

Presumably this is already rolling back forty years of decadence and cultural decline. If not, we might have to up it to two minutes.

RELATED POST: A Wall of Separation - Wallace v. Jaffree (1985)

RELATED POST: Building A Wall of Separation (Faith & School)

RELATED POST: A Wall of Separation (Court Cases Involving Church and State)

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