Sherman v. Twp. High Sch. Dist. 214, No. 07-6048 (N.D. Ill. Nov. 15, 2007)
A U.S. district court in Illinois has issued a preliminary injunction prohibiting a school district from implementing the state’s new mandatory "moment of silence" law. The court found that the plaintiff’s claims that the law is unconstitutionally vague and violates the First Amendment’s Establishment and Free Exercise Clauses are likely to succeed. The law in question is a 2007 amendment to a 1969 law that permitted schools to observe a brief period of silence for silent prayer or reflection. In 1990, the state legislature amended the law by adding a provision making clear that students may voluntarily initiate prayer so long as it is non-disruptive and, "consistent with the Free Exercise and Establishment Clauses of the United States and Illinois Constitutions, is not sponsored, promoted or endorsed in any manner by the school or any school employee." The 2007 amendment made observation of the "moment of silence" mandatory. Robert Sherman challenged the law in a suit brought on behalf of his daughter, Dawn Sherman, a student at Buffalo Grove High School. The suit names Township High School District 214 (THSD 214) and Dr. Christopher Koch, Illinois State Superintendent of Education, as defendants and argues that the law is void because it is unconstitutionally vague and that it violates the Establishment and Free Exercise of Religion Clauses.
The court started by stating that under the "void-for-vagueness" doctrine "‘a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’" When, as in this case, the uncertainty of the statute creates an environment that threatens to inhibit the exercise of constitutionally protected rights, a court subjects the statutes to a more stringent standard of review. A vague law that chills First Amendment rights is void on its face, the court continued even if it may have some legitimate application. The court found that this statute failed to specify: (1) how the period of silence should be implemented; (2) the time of day the period should be observed; (3) how long the period should be; and (4) whether students would be required to sit or stand, or would be permitted to move about the classroom. More important, the statute failed to set out penalties for students who fail to remain silent, teachers who refuse to hold the period of silence, and schools and school districts that refuse to implement the statute in whole or in part. As a result, the court concluded that the plaintiff was likely to prevail on the vagueness claim.
This vagueness, in turn, created potential Establishment Clause and Free Exercise of Religion Clause violations, the court held. By directing students to consider prayer as one of two options during the period of silence, the statute appears to convey to students that the period should be use for prayer. This would be a possible violation of the Establishment Clause, the court reasoned. As for the free exercise claim, the vagueness as to permissible activities during the period of silence, such as use of a Muslim prayer rug, a Bible, or chanting, raised concerns of possible free exercise violations.
Sherman v. Twp. High Sch. Dist. 214, No. 07-6048 (N.D. Ill. Nov. 15, 2007)
[Editor’s Note: According to the news report below, some state legislators who supported the legislation and some who opposed it agree that removal of the word "prayer" from the statute will spare schools from further litigation. For background on the suit, see the second link. In 1985, the U.S. Supreme Court in Wallace v. Jaffree, 472 U.S. 38 (1985), struck down an Alabama moment of silence statute as promoting religion after it was amended to specify that voluntary prayer was permitted. In 2001, the Fourth Circuit in Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001), upheld Virginia’s moment of silence statute, which specified that prayer was one option.]
Chicago Tribune By Jeff Coen
NSBA School Law pages on Illinois moment of silence suit