SHERMAN v. KOCH (October 15, 2010)

In 1969, the Illinois legislature authorized, but did not require, public school teachers to "observe a brief period of silence" to be used as "an opportunity for silent prayer or for silent reflection." The legislature added a section to the act in 2002 declaring a student's right to exercise religion freely and to be free from State pressure regarding the exercise or non-exercise of religion. In 2007, the legislature made the brief period of silence mandatory. Dawn Sherman, a public high school student, brought suit through her father under § 1983. She brought a facial challenge under both the First and Fourteenth Amendments. Judge Gettleman (N.D. Ill.) granted a preliminary injunction, certified a plaintiff class of state public school students, certified a defendant class of state public school districts, granted summary judgment to the plaintiff class, and permanently enjoined the statute’s implementation. He concluded that the statute violated the First Amendment in that it failed the first two prongs of the Lemon test (it had no secular purpose and its primary effect was to advance religion). He also concluded that the statute was unconstitutionally vague under the Fourteenth Amendment. The defendants appeal.

In their opinion, Judges Ripple, Manion, and Williams (dissenting) reversed. The Court briefly addressed and rejected the argument that Sherman lacked standing because she suffered no damage (since she was only subjected to silence). Sherman alleged that the practice violates the First Amendment. Her status as a student is enough for standing. On the merits, the Court applied the Lemon test. Under Lemon, a statute: a) must have a secular legislative purpose, b) must not primarily advance or inhibit religion, and c) must "not foster an excessive government entanglement with religion." The Court first concluded that the statute had a secular legislative purpose under the first Lemon prong. It relied on the plain meaning of the statute, its context, its legislative history, and the events leading to its passage. It concluded that each of those factors supported the articulated legislative purpose of providing a moment of silence at the beginning of a school day in order to calm the students. The record was very different from the record in Wallace, in which the Supreme Court held that Alabama's similar statute lacked any secular purpose. In fact, the Court found support for its view in the Wallace concurring opinions of Justices O'Connor and Powell. With respect to the second Lemon prong, the Court concluded that the statute's primary effect was not to advance or inhibit religion. The Court relied principally on the statute's language. The statute expressly provided that the brief period of silence could not be conducted as a religious exercise -- and thus did not advance religion. It also expressly provided that the moment of silence was an opportunity for prayer or silent reflection -- and thus did not inhibit religion. Since no one raised the third Lemon prong, the Court concluded that the statute met the test and did not violate the Establishment Clause. The Court briefly considered the facial Fourteenth Amendment vagueness challenge. The Due Process Clause does not require perfection and precision, particularly where criminal penalties are not at issue and particularly in a school setting. Although the statute does not provide any details regarding the moment of silence’s logistics, testimony in the record indicates that school districts are quite capable of providing that detail. The facial challenge fails.

Judge Williams dissented from the panel's opinion with respect to the First Amendment challenge. Her view can be gleaned from one sentence in her opinion: ([L]et’s call a spade a state -- statutes like these are about prayer in schools." Notwithstanding the deference that should be shown to the legislature's stated purpose and the fact that there are statements of secular purpose in the record, Judge Williams believed they were pretextual. She relied principally on two things: the specific reference to prayer and the inclusion of prayer as one of (and the first of) two available alternatives for the moment of silence. She believed that the statute endorsed religion and thereby violated the Establishment clause.