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The Sounds of Silence

“All I want out of you is silence, and damn little of that.”

A Whaler’s Captain addressing a crewmember. Zephaniah W. Pease, The History of New Bedford

It is time for an update on silence. It’s back. A quiet subject, it nonetheless leads to raucous debate and seems reluctant to be what its name suggests. Silence, it turns out, is sinister. To those fearing prayer in the public schools, a threat-to prayer’s supporters, a boon.

One of silence’s early appearances in the courtroom as a legal principle rather than a matter of decorum came about in the early 1980s. It was brought to the courthouse by the ACLU. In 1982 the ACLU sued the New Jersey State legislature, a body that in its wisdom (and lacking other worthwhile activities) legislatively decreed that all children in school should be silent one minute each day. The ACLU thought this a bad idea and brought suit. I applauded its actions since, having four children, I thought it absurd to legislatively decree only one minute of silence from the young. It seemed to me a law imposing silence on the young should at the very least prescribe one hour of silence each day (during waking hours) at a time to be determined by the parents. The ACLU, however, not having any children of its own and not sensitive to the noise produced by them, sued, not to extend the time as I had hoped but to eliminate the legislatively proscribed silence.

The grounds for the ACLU’s suit (grounds that could only be asserted by the childless) is that one minute of silence in the school room can lead to one minute of prayer, an activity that is proscribed in the school room. Ignored by the ACLU and the courts that have considered the issue, is that one minute of silence in the average school room is not enough for the children to get their thoughts organized enough from the chaos that preceded it to enable them to get even one quick prayer off to heaven. (The plaintiffs in the Texas case also faulted the statute saying it caused excessive government entanglement with religion by requiring that teachers regulate student behavior to ensure silence and no distractions during the moment of silence. Presumably the plaintiffs would not object to teachers telling the children to be quiet if they were not limiting the silence to the feared “one-minute.”)

Accepting the position of the ACLU, the U.S. Court of Appeals for the Third Circuit struck down the “minute of silence” statute. In so doing it was following the example of the U.S. Supreme Court that had struck down a “minute of silence” statute that came from the state of Alabama. In both cases the “minutes of silence” were stricken for, among other reasons, the fact that the statutes lacked a secular purpose. Notwithstanding these dual defeats, silence continued to proclaim its right to be heard in a variety of lawsuits, the most recent of which came from Texas.

On March 19, 2009, the Fifth Circuit Court of Appeals affirmed a lower court decision finding that Texas’s most recent statutory amendment pertaining to quiet in the schools passed constitutional muster and in so doing gave some good guidelines to those seeking to introduce silence to the classroom even if only by the thimble full. The guidelines mandate putting in the kinds of things children can do when quiet in addition to sending thoughts heavenward. In this case the statute provided that: “During the one-minute period, each student may, as the student chooses, reflect, pray, meditate or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.”

That is a really nifty statute since it gives the student options. It would have been an even better statute if it had added other things like suggesting that during the minute of silence the kids could practice their “times tables” or their “less thans” or “more thans” or worked on recalling the names and birthdates of the kings and queens of England. Although inclusion of the purposes to which the minute can be put is inserted to satisfy the courts, it has a useful purpose as far as the student is concerned.

The typical child would view an imposed undefined moment of silence as simply an interruption in his or her daily routine similar to the interruption the child is accustomed to on television and would assume the moment should be filled with commercials, which is what one-minute interruptions are usually for. Once informed of all the great things that can be accomplished in a minute of silence children and parents alike will welcome its introduction into the classroom. Silence will be grateful that it has been permitted to return to its natural state.

CHRISTOPHER BRAUCHLI is a lawyer living in Boulder, Colorado. He can be reached at: brauchli1@comcast.net

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