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Sherman v. Township High School Dist. 214

January 21, 2009

DAWN S. SHERMAN, A MINOR, THROUGH ROBERT I. SHERMAN, HER FATHER AND NEXT FRIEND, ON BEHALF OF HERSELF AND ALL OTHER SIMILARLY SITUATED, PLAINTIFF,
v.
TOWNSHIP HIGH SCHOOL DISTRICT 214, ON BEHALF OF ITSELF AND ALL OTHER SCHOOL DISTRICTS SIMILARLY SITUATED, AND DR. CHRISTOPHER KOCH, STATE SUPERINTENDENT OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

This court has issued two opinions in this action, in which plaintiff Dawn S. Sherman, a minor, through Robert I. Sherman, her father and next friend, attacks the Illinois Silent Reflection and Student Prayer Act, 105 ILCS 20/1 (the "Statute") as unconstitutional.*fn1 In the earlier opinions, the court denied the motions to dismiss filed by defendant Christopher Koch, Illinois Statue Superintendent of Education (the "Superintendent"), certified plaintiff and defendant classes (with defendant Township High School District 214 ("District 214") as the defendant class representative), and entered preliminary injunctions enjoining the Superintendent and the defendant class of Illinois school districts from enforcing the Statute. The case is now before the court on plaintiff's and defendants' motions for summary judgment.*fn2 For the reasons discussed below, the court grant plaintiff's motion and denies defendants'.

BACKGROUND

The court sees no reason to repeat the entire background information and its previous holdings, except as necessary to address the arguments raised by the parties and the amici curiae*fn3 in connection with the current dispositive motions. The history of the Statute was stated in Sherman I as follows:

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 200[2], 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.

DISCUSSION

Plaintiffs and the ACLU attack the constitutionality of the Statute on a number of grounds, including violation of the Establishment Clause of the First Amendment, as applied to the states by the Fourteenth Amendment,*fn4 and vagueness. The Establishment Clause provides, "Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Establishment Clause challenges are analyzed under the three part test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971).*fn5 Under Lemon, to survive an Establishment Clause challenge a statute must: (1) have a secular legislative purpose; (2) have a principle or primary effect that neither advances nor inhibits religion; and (3) not foster an excessive government entanglement with religion. Id. at 612-13.

Although a statute must have a "clearly secular purpose" Wallace v. Jaffrie, 472 U.S. 38, 56 (1985), the purpose need not be exclusively secular. Lynch v. Donelly, 465 U.S. 668, 681 n.6 (1984). A court should usually give deference to the legislature's stated purpose, but that secular purpose must be sincere and not a sham. Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987). "When a governmental entity professes a secular purpose for an arguably religious policy, the government's characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to 'distinguis[h] a sham secular purpose from a sincere one.'" Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace, 472 U.S. at 75 (O'Connor, J., concurring)). To determine a statute's purpose, the court must examine the language on its face, as well as the legislative history and specific sequence of events leading to its adoption. Edwards, 482 U.S. at 594-95.

The parties and the amici have devoted a great deal of effort discussing the legislative motivation behind the Statute and the amendments thereto, as well as proffering expert reports concerning the effect the Statute would have on school children of various ages. In addition, the Superintendent has tendered the "results" of a "survey" he conducted of the 873 school districts in Illinois regarding how the districts interpreted and observed the mandates of the Statute. Because plaintiff's attack on the constitutionality of the Statute is primarily facial, the court will begin its analysis with an interpretation of the clear language of the Statute itself, and will then address the extrinsic evidence offered by the parties and the amici.

To begin, the Statute requires every classroom teacher to "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 reflection on the anticipated activities of the day." Thus, every pupil must participate in the period of silence, and that period is limited to one of two purposes: prayer or "reflection" on the days activities. Because the Statute applies to school children ranging in ages from five (kindergarten) to eighteen (high school seniors), the court must be "particularly vigilant in monitoring compliance with ...


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