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Amid the nation’s understandable preoccupation with tragedy at home and war abroad, it would have been easy to miss one of the most important stories of the year for the future of American schools: on October 29, the Supreme Court announced that it would not entertain a challenge to the new Virginia statute requiring a moment of silence to begin the school day.

The law, which went into effect in the summer of 2000, was challenged as a violation of the First Amendment’s prohibition on the establishment of religion. But a federal district judge dismissed the lawsuit, known as Brown v. Gilmore, a federal court of appeals agreed, and the Supreme Court refused to reinstate it.

The media gave the story very little play. If the Court is stepping out of the business of regulating moment-of-silence laws, however, that is very big news indeed.

Ever since the classroom prayer decisions in the early 1960s, parents who want their children to pray in school and parents who do not have been engaged in a running battle over how much religious expression to allow students, and how to avoid the appearance that the school authorities are championing religion.

The rush to avoid endorsement has led to some uncommonly silly results, like the school in New Jersey that did not allow a Christian student to read his favorite story to the class because it came from the Bible. The courts agreed with this strange decision, suggesting that the command of the First Amendment is that the government should discriminate against religious speech.

There have also been some very good compromises, like the federal statute that requires public schools to grant religious clubs the same degree of access to their facilities that they give to secular clubs. (A California school district recently tried to get around this law by banning all student clubs; the effort crumbled under parental pressure.)

But the messy heart of the battle remains prayer. Surveys indicate that the school prayer decisions, 40 years after being handed down, remain highly unpopular. Yet the decisions to ban school prayer were correct, resting on an important if rarely articulated truth: the religious education of children is both the right and the responsibility of the family. This role is older than the Constitution, and the state has no power to interfere with it.

The problem with organized school prayer was that it could too easily contradict the religious teachings of the parents. (So can many other courses of study in the schools, which is why religious parents should have the right to remove their children from mandatory sex education classes, study of the theory of evolution, the ideological education that goes under the misnomer of “tolerance,” and any other subject that, in parental judgment, makes it harder to raise children in the faith of the parents. But more on that in a future column.)

Many religious parents, however, are understandably uneasy about sending their children to schools that are aggressively secular. They want to set aside a part of the school day for their children to be fully religious, even if other children are not, without the pressure of having to sneak a moment for prayer between classes. If organized classroom prayer is not allowed, what is left to mark the work of the day as still a part of the fabric of God’s creation?

A moment of silence to begin the school day is an excellent compromise. Although the Supreme Court in 1985 declared unconstitutional an earlier Alabama moment-of-silence statute, the grounds were flimsy: some of the legislative supporters said they hoped some students would pray, and the statute expressly authorized them to do so. (One might have thought that providing a way for students to exercise their constitutional rights was an argument for rather than against constitutionality, but evidently not.) In any case, the current law is different. The Alabama law stated that the moment of silence could be used for prayer. The Virginia law, if the distinction truly matters, does not mention the forbidden P-word.

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February 4 2002, Vol. 46, No. 2