Moment of Silence Statutes

Moment of silence statutes require or permit the observance of moments of silence in public school classrooms. These statutes must be considered in light of the Supreme Court’s constitutional doctrine concerning prayer in public schools. In a long line of decisions, the Court has ruled that the Establishment Clause of the First Amendment forbids the public schools from sponsoring prayer or other religious exercises, even when student participation is designated as voluntary. Among the Court’s concerns is the risk of subtle and indirect coercion, which might impair dissenting students’ religious liberty or liberty of conscience. Public school students are required to attend; they are of an impressionable age; and they are readily influenced not only by their teachers, but also by social pressure, including peer pressure. As a result, students may feel obliged to participate in religious exercises despite their formal right to decline. Indeed, even when attendance is formally voluntary, as, for example, at a graduation ceremony, the Supreme Court noted in Lee v. Weisman, 505 U.S. 577 (1992), that a dissenting student might feel ‘‘that she is being forced by the State to pray in a manner her conscience will not allow.’’

The Court in Weisman also reiterated as a ‘‘cornerstone principle’’ that ‘‘it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.’’ Another core principle of the Establishment Clause is that the government cannot prefer one religion over another. More broadly, the Establishment Clause generally forbids the government, including the public schools, from promoting religion over irreligion, even if there is no preference for any particular religion. At the same time, however, private religious activity, even in the public schools, is protected by the free exercise clause of the First Amendment. Accordingly, the Supreme Court has stated that public schools are free to accommodate the private religious activity of students, as long as the schools do not promote or endorse that activity. Moment of silence statutes have been challenged on the ground that they go beyond Accommodation of Religion by impermissibly promoting prayer, but the Supreme Court has suggested that most such statutes are constitutional.

The leading case is Wallace v. Jaffree, 472 U.S. 38 (1985), decided in 1985. In Wallace, the Supreme Court invalidated an Alabama moment of silence statute on a vote of six to three, but the Court’s decision was narrowly tied to the legislative history of the enactment. Preexisting Alabama law had already authorized silent ‘‘meditation,’’ and the challenged statute did little more than add a provision for ‘‘voluntary prayer.’’ Indeed, the chief legislative sponsor conceded that he had no purpose except that of ‘‘returning voluntary prayer to public schools.’’ Writing for a majority of five, Justice John Paul Stevens found that the challenged statute was ‘‘entirely motivated by a purpose to advance religion.’’ As such, it violated the secular purpose requirement of the Establishment Clause, as set forth in the often cited constitutional test of Lemon v. Kurtzman (403 U.S. 602, 1971).

Despite the Court’s holding in Wallace, the justices indicated that other moment of silence statutes would stand on a different footing. Taking account of the views expressed not only in the majority opinion, but also in five separate opinions (both concurring and dissenting), a majority of the justices suggested that they would approve most moment of silence laws. Perhaps the most important opinion was that of Justice Sandra Day O’Connor, who joined the Court’s invalidation of the Alabama statute, but emphasized its exclusively religious motivation. In other circumstances, she declared, the Establishment Clause would not preclude a moment of silence statute, even if it explicitly stated that the moment could be used for prayer as well as meditation or reflection. Utilizing the no endorsement test that she had first proposed in Lynch v. Donnelly, 465 U.S. 668 (1984), Justice O’Connor wrote:

The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools . . . . A moment of silence law that is clearly drafted and implemented so as to permit prayer, meditation, and reflection within the prescribed period, without endorsing one alternative over the others, should pass this test.

A majority of the states have enacted moment of silence statutes. Most refer simply to a period of silence for meditation or reflection, but others include references to prayer. Some statutes make the moments of silence mandatory. Others merely authorize such moments, leaving their implementation to school boards or individual teachers. Despite their diverse provisions, most of these statutes appear to satisfy the analysis of Justice O’Connor and therefore probably do not violate the Establishment Clause. Indeed, lower courts have so concluded, upholding moment of silence statutes as long as their legislative histories do not suggest the improper purpose of promoting or endorsing religion. In Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997), for example, the Eleventh Circuit approved a Georgia statute requiring ‘‘a brief period of quiet reflection,’’ and in Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001), the Fourth Circuit upheld a Virginia statute requiring a ‘‘minute of silence’’ for students to ‘‘meditate, pray, or engage in any other silent activity.’’

Critics contend that moment of silence statutes are thinly veiled attempts to promote prayer and that they are likely to have that effect. Thus, students who might not be inclined to pray may feel social and peer pressure to do so. Moreover, moments of silence may have the effect of promoting some religions over others, thereby violating a core policy of the Establishment Clause. Brief silent prayer is commonplace in Judaism and Christianity, for example, but Islamic prayer may not easily fit this model.

Conversely, one can argue—and it seems that the Supreme Court has implicitly concluded—that neutrally crafted moment of silence statutes are an acceptable constitutional compromise. Although there is a risk of coercion, any such coercion is subtle indeed; students are free to sit silently and think about anything they like. The potential preference for some religions over others is a separate concern, but, like nonreligious students, religious students whose religion does not countenance silent prayer during this period are free to engage in nonreligious reflection. The government is not ‘‘compos[ing] official prayers for any group of the American people to recite.’’ Rather, it is permitting interested students to compose silent prayers of their own, an activity protected by the free exercise clause.

DANIEL O. CONKLE

References and Further Reading

• Davis, Derek H. ‘‘Moments of Silence in America’s Public Schools: Constitutional and Ethical Considerations.’’ Journal of Church and State 45 (2003): 429–442.
• Dellinger, Walter, The Sound of Silence: An Epistle on Prayer and the Constitution, Yale Law Journal 95 (1986): 1631–1646.
• Education Commission of the States. ‘‘School Prayer, Moment of Silence, Other Policies Concerning Religion, July 2000,’’ https://www.ecs.org/clearinghouse/13/38/1338.htm.
• Smith, Rodney K., Now Is the Time for Reflection: Wallace v. Jaffree and Its Legislative Aftermath, Alabama Law Review 37 (1986): 345–389.

Cases and Statutes Cited

• Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997)
• Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Wallace v. Jaffree, 472 U.S. 38 (1985)

See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment Clause (I): History, Background, Framing; Establishment of Religion and Free Exercise Clauses