258 F.3d 265 (4th Cir. 2001), 00-2132, Brown v. Gilmore

Docket Nº:00-2132 No. 00-2400
Citation:258 F.3d 265
Party Name:ED BROWN, as parent and next friend of Vanessa Brown; ROSALYNNE BROWN, as parent and next friend of Vanessa Brown; VANESSA BROWN, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; MARC J. COHEN, as parent and next friend of Amy and Michael Cohen; MICHAEL COHEN, a minor child attending Spring Hill
Case Date:July 24, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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258 F.3d 265 (4th Cir. 2001)

ED BROWN, as parent and next friend of Vanessa Brown; ROSALYNNE BROWN, as parent and next friend of Vanessa Brown; VANESSA BROWN, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; MARC J. COHEN, as parent and next friend of Amy and Michael Cohen; MICHAEL COHEN, a minor child attending Spring Hill School in Fairfax, Virginia; AMY COHEN, a minor child attending Spring Hill School in Fairfax, Virginia; FRANK M. FEIBELMAN, as parent and next friend of Seth Feibelman; SETH FEIBELMAN, a minor child attending Henrico County Middle School in Henrico County, Virginia; GREGORY KRUGLAK, as parent and next friend of Kathryn Anya Kruglak; PATRICIA KRUGLAK, as parent and next friend of Kathryn Anya Kruglak; KATHRYN ANYA KRUGLAK, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; JEFFREY M. LEPON, as parent and next friend of Jana Lepon and Ariel Lepon; CORA YAMAMOTO, as parent and next friend of Jana Lepon and Ariel Lepon; JANA LEPON, a minor child attending Longfellow Middle School in Fairfax County, Virginia;

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ARIEL LEPON, a minor child attending Haycock Elementary School in Fairfax County, Virginia; WAYNE GRAY, as parent and next friend of Robyn Gray; DEBORAH GRAY, as parent and next friend of Robyn Gray; ROBYN GRAY, a minor child attending White Oak Elementary School in Fairfax County, Virginia; MARK MAGRUDER, as parent and next friend of Mia MaGruder; ELLA MAGRUDER, as parent and next friend of Mia MaGruder; MIA MAGRUDER, a minor child attending Amherst Middle School in Amherst County, Virginia; ROY KUPERSMITH, as parent and next friend of Jordan Kupersmith; ADRIANA KUPERSMITH, as parent and next friend of Jordan Kupersmith; JORDAN KUPERSMITH, a minor child attending Potomac Falls High School in Loudoun County, Virginia, Plaintiffs-Appellants,

v.

JAMES GILMORE, The Honorable James Gilmore in his official capacity as Governor of the Commonwealth of Virginia; WILBERT BRYANT, The Honorable Wilbert Bryant in his official capacity as Virginia Secretary of Education; JO LYNNE DEMARY, in her official capacity as Virginia Superintendent of Public Instruction; VIRGINIA BOARD OF EDUCATION; VIRGINIA DEPARTMENT OF EDUCATION; DANIEL DOMENECH, in his official capacity as Division Superintendent Fairfax County Public Schools; MARK A. EDWARDS, in his official capacity as Division Superintendent Henrico County Public Schools; JOHN J. DANIELS, in his official capacity as Division Superintendent Amherst County Public Schools; THE FAIRFAX COUNTY SCHOOL BOARD; HENRICO COUNTY SCHOOL BOARD; AMHERST COUNTY SCHOOL BOARD; EDGAR B. HATRICK, in his official capacity as Division Superintendent Loudoun County Public Schools; LOUDOUN COUNTY SCHOOL BOARD, Defendants-Appellees.

ED BROWN, as parent and next friend of Vanessa Brown; ROSALYNNE BROWN, as parent and next friend of Vanessa Brown; VANESSA BROWN, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; MARC J. COHEN, as parent and next friend of Amy and Michael Cohen; MICHAEL COHEN, a minor child attending Spring Hill School in Fairfax, Virginia; AMY COHEN, a minor child attending Spring Hill School in Fairfax, Virginia; FRANK M. FEIBELMAN, as parent and next friend of Seth Feibelman; SETH FEIBELMAN, a minor child attending Henrico County Middle School in Henrico County, Virginia; GREGORY KRUGLAK, as parent and next friend of Kathryn Anya Kruglak; PATRICIA KRUGLAK, as parent and next friend of Kathryn Anya Kruglak; KATHRYN ANYA KRUGLAK, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; JEFFREY M. LEPON, as parent and next friend of Jana Lepon and Ariel Lepon; CORA YAMAMOTO, as parent and next friend of Jana Lepon and Ariel Lepon; JANA LEPON, a minor child attending Longfellow Middle School in Fairfax County, Virginia; ARIEL LEPON, a minor child attending Haycock Elementary School in Fairfax County, Virginia; WAYNE GRAY, as parent and next friend of Robyn Gray; DEBORAH GRAY, as parent and next friend of Robyn Gray; ROBYN GRAY, a

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minor child attending White Oak Elementary School in Fairfax County, Virginia; MARK MAGRUDER, as parent and next friend of Mia MaGruder; ELLA MAGRUDER, as parent and next friend of Mia MaGruder; MIA MAGRUDER, a minor child attending Amherst Middle School in Amherst County, Virginia; ROY KUPERSMITH, as parent and next friend of Jordan Kupersmith; ADRIANA KUPERSMITH, as parent and next friend of Jordan Kupersmith; JORDAN KUPERSMITH, a minor child attending Potomac Falls High School in Loudoun County, Virginia, Plaintiffs-Appellants,

v.

JAMES GILMORE, The Honorable James Gilmore in his official capacity as Governor of the Commonwealth of Virginia; WILBERT BRYANT, The Honorable Wilbert Bryant in his official capacity as Virginia Secretary of Education; JO LYNNE DEMARY, in her official capacity as Virginia Superintendent of Public Instruction; VIRGINIA BOARD OF EDUCATION; VIRGINIA DEPARTMENT OF EDUCATION; DANIEL DOMENECH, in his official capacity as Division Superintendent Fairfax County Public Schools; MARK A. EDWARDS, in his official capacity as Division Superintendent Henrico County Public Schools; JOHN J. DANIELS, in his official capacity as Division Superintendent Amherst County Public Schools; THE FAIRFAX COUNTY SCHOOL BOARD; HENRICO COUNTY SCHOOL BOARD; AMHERST COUNTY SCHOOL BOARD; EDGAR B. HATRICK, in his official capacity as Division Superintendent Loudoun County Public Schools; LOUDOUN COUNTY SCHOOL BOARD, Defendants-Appellees.

No. 00-2132 No. 00-2400

United States Court of Appeals, Fourth Circuit

July 24, 2001

Argued: May 8, 2001

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge.

(CA-00-1044-A)

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COUNSEL ARGUED: Stuart Henry Newberger, CROWELL & MORING, L.L.P., Washington, D.C., for Appellants. William Henry Hurd, Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Daniel A. Sasse, David L. Haga, Christina M. Mireles, CROWELL & MORING, L.L.P., Washington, D.C.; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, Richmond, Virginia, for Appellants. Mark L. Earley, Attorney General, Ashley L. Taylor, Jr., Deputy Attorney General, Alison P. Landry, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Williams joined. Judge King wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

In 2000, the Commonwealth of Virginia amended a 1976 statute to mandate that each school division in the state establish in its classrooms a "minute of silence" so that "each pupil may, in the exercise of his or her individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice." Va. Code Ann. S 22.1-203 (Michie 2000) (emphasis added). Several Virginia students and their parents commenced this action to challenge this statute on its face, contending that it establishes religion in violation of the First Amendment. The district court rejected the challenge, and we affirm.

I

In 1976, Virginia enacted into law S 22.1-203. This provision authorized, but did not require, local school boards to establish a minute of silence in their classrooms for the expressly stated purpose of allowing students to meditate, pray, or engage in any other silent activity. In 1994, the Virginia General Assembly required the Virginia Board of Education to adopt guidelines on religious activities in the schools. See Va. Code Ann. S 22.1-280.3. As directed, the Board of Education adopted "Guidelines Concerning Religious Activities in the Public Schools," in which it provided:

Public schools may provide students . . . with a minute of silence to collect themselves and put their upcoming tasks in meaningful perspective for the individual student. A brief minute of silence may also fulfill other secular objectives, including maintenance of discipline.

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The teacher may not indicate his or her views on whether students should use the time to pray or not to pray. The teacher should also not use the time to pray aloud in front of other students, nor permit any other student, or groups of students, to pray aloud.

Acting under the authority of the 1976 law, at least 14, and perhaps 20 school divisions in Virginia chose to establish a minute of silence in their classrooms, and a survey conducted by the Virginia Superintendent of Schools revealed that this minute of silence has not led to any peer-on-peer religious harassment.

In 2000, the Virginia legislature amended S 22.1-203 to require that every school division provide a minute of silence in the State's public school classrooms and to direct the Attorney General to defend the statute when it is challenged in court. The amended law became effective July 1, 2000.1

Senator Warren Barry, who sponsored Senate Bill 209 ("SB 209") containing the 2000 amendments to Virginia CodeS 22.1-203, explained to the press that he introduced the bill in response to some recent highly publicized incidents of school violence with the hope that encouraging regular introspection by students would somehow lessen the urges of students to resort to violence. When asked by a newspaper reporter about his intent in sponsoring the bill, Senator Barry responded that his intent was not to force prayer in schools, but he added, "This country was based on belief in God, and maybe we need to look at that again."2

During...

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