The opinion of the court was delivered by: Judge Robert W. Gettleman
AMENDED MEMORANDUM OPINION AND ORDER
Plaintiff Dawn S. Sherman, a minor, through Robert I. Sherman, her father and next friend, brought a first amended complaint against defendants Township High School District 214 ("District 214") and Dr. Christopher Koch, as State Superintendent of Education ("Dr. Koch"), alleging a violation of plaintiff's First Amendment rights under 42 U.S.C. § 1983.*fn1 Plaintiff, an atheist, seeks a preliminary injunction preventing defendants from implementing 105 ILCS 20/1, which mandates a period of silence for silent prayer or reflection at the start of each school day. Dr. Koch has moved to dismiss the case as against him. For the reasons stated on the record at the hearings conducted on November 14 and 15, 2007, and as discussed below, the court grants plaintiff's motion for a preliminary injunction and denies Dr. Koch's motion to dismiss.
Since 1969, Illinois has had a statute regarding a "period of silence" to be observed daily in public schools statewide. The original statute stated that:
In each public school classroom the teacher in charge may observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day. This period 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. (Emphasis added.)
In 1990, the Illinois legislature amended the statute, 105 ILCS 20/1, to title the law "The Silent Reflection Act." In 2003, the legislature again amended the statute to change its name to "The Silent Reflection and Student Prayer Act." The amendment also added the following substantive section, codified as 105 ILCS 20/5:
Sec. 5. Student prayer. In order that the right of every student to the free exercise of religion is guaranteed within the public schools and that each student has the right to not be subject to pressure from the State either to engage in or to refrain from religious observation on public school grounds, students in the public schools may voluntarily engage in individually initiated, non-disruptive prayer that, 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.
In October 2007, the legislature amended the law once again to make the period of silence mandatory. The statute now reads, in relevant part, "In each public school classroom the teacher shall observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day." (Emphasis added.) The statute became effective upon its passage, and plaintiff's school began implementing the statute in October by announcing a "moment of silence" at the beginning of each school day.
Plaintiff has asked this court to preliminarily enjoin defendants from holding a daily period of silence in Illinois public schools under the Silent Reflection and Student Prayer Act. A preliminary injunction is an "extraordinary remedy" and may be issued only if the moving party demonstrates: some likelihood of success on the merits, an inadequate remedy at law; and irreparable harm if the injunction is denied. Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 769 (7th Cir. 2001). If these elements are met, the court must then balance the irreparable harm the non-movant will suffer if the injunction is granted against the irreparable harm to the moving party if relief is denied. Id. The court must also consider the interests of the public in determining whether to issue a preliminary injunction. Id.
Plaintiff argues regarding the merits of the instant lawsuit that the statute in question is void because it is unconstitutionally vague. 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.'" Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984), (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).
A vague law is especially troublesome when, as in the instant case, "the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights." Okpalobi v. Foster, 190 F.3d 337, 358 (5th Cir. 1999), (quoting Colautti v. Franklin, 439 U.S. 379, 391 (1979) (citations omitted)). In that instance, the court's standard of review is more stringent; a vague law that chills First Amendment rights is void on its face "even when [the law] could have had some legitimate application." Id.
The court finds that plaintiff has established a likelihood that she will prevail in her claim that the Silent Reflection and Student Prayer Act is unconstitutionally vague. Initially, the statute provides no direction whatever as to: how the period of silence should be implemented (e.g., whether the purpose of the period of silence should be explained to the pupils); what time of day the period of silence should occur (does the "opening" of the school day mean as soon as the pupils enter the classroom, after the pledge of allegiance, or some other time before the beginning of class?); how long the period of silence should last (two seconds; two minutes?); and whether pupils are permitted to move about the room during the period of silence or whether they must stand at or sit in their seats. Although counsel for Dr. Koch stated that ...