Moments of Silence in America's Public Schools: Constitutional and Ethical Considerations
Davis, Derek H., Journal of Church and State
In many ways the Supreme Court's landmark decision in Everson v. Board of Education (1947) set the tone for the modern debate about the merits of the separation of church and state. On the one hand, separationists celebrate the decision for enshrining Thomas Jefferson's "wall of separation" as that metaphor which best describes the relationship that should exist between religion and state in America. Accommodationists, on the other hand, being those who seek a larger role for religion in public life, are more likely to bemoan the decision for the very reason that separationists celebrate it-the "wall" language and the separationist framework it created for addressing church-state issues. But in fact the Everson decision was neither a total victory for separationists nor a total loss for accommodationists. While the decision was replete with separationist rhetoric and definitely laid the groundwork for a host of separationist decisions to come, its resultallowing Ewing Township of New Jersey to reimburse parents for costs incurred to transport their children to and from parochial schools on city buses-was decidedly accommodationist. The Court, in other words, seemed to honor Jefferson by constructing a "high and impregnable wall," but then immediately set out to create at least one wide gate of safe passage.
The current law regarding moments of silence in the nation's public schools is in many ways a microcosm of the kind of "wall"/"gate" motif seen in the Everson decision. In 1985, in Wallace v. Jaffree, the Court struck down Alabama's moment-of-silence legislation, but then uncharacteristically assumed the role of counselor by telling legislatures everywhere how to craft a moment-of-silence statute that would pass constitutional muster. Many states subsequently took the message to heart and passed new (in some cases revising old) moment-of-silence statutes. The Court has not seen fit to revisit the issue to put its official stamp of approval on any of these statutes, but it is now widely assumed that moment-of-silence observances are constitutional, provided the Court's unofficial suggestions are followed. So, as in Everson, the Jaffree Court appeared quite serious about preserving Jefferson's separationist "wall," but simultaneously willing to cut yet another door of saie passage. While some have argued that the Jaffree case was simply another in a long line of church-state cases in which the Court seemed capable only of doublespeak, the Court saw itself as acting with sensitivity to the competing demands of the Establishment and Free Exercise Clauses, or, as it said in Waiz v. Tax Commission (1970), of pursuing "benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."
This essay will not challenge the constitutionality of moments of silence. It is conceded that if drafted carefully, such enactments are constitutional. And, of course, moments of silence might in many cases have salutary effects upon participating students. It will be suggested, however, that on balance, for a number of ethical reasons, moments of silence are not necessarily a good idea, although they might be in a few limited cases. To state it more matter-of-factly, what is legal is not always what is best when it comes to educating America's children.
I. MOMENTS OF SlLENCE ANO THE JAFFREE CASE
When the Supreme Court decided in 1985 to review the Jaffree case, twenty-five states already had moment-of-silence statutes. Such statutes generally were responses to public sentiment that some form of prayer should be permitted, even encouraged, in the nation's public schools. More overt forms of prayer had already been held to be unconstitutional in EnggZ t). ViiaZg (J 962) and Abington Township School District v. Schempp (1963).
In Engel, the Court struck down a twenty-two word, nondenomina-tional prayer written by the New York Board of Regents for official use in …
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Publication information: Article title: Moments of Silence in America's Public Schools: Constitutional and Ethical Considerations. Contributors: Davis, Derek H. - Author. Journal title: Journal of Church and State. Volume: 45. Issue: 3 Publication date: Summer 2003. Page number: 429. © 1999 J.M. Dawson Studies in Church and State. Provided by ProQuest LLC. All Rights Reserved.
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