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Arguments on New Jersey Minute of Silence in Public School Law Presented Before the Supreme Court

The Supreme Court heard arguments Tuesday on whether a 1982 New Jersey law requiring a minute of silence in public schools “for private contemplation and introspection” violated the First Amendment prohibition on the establishment of religion.

The case, Karcher v. May, is an appeal of a decision by the Third U.S. Circuit Court of Appeals upholding a 1985 decision by the Federal District Court in New Jersey that the law was unconstitutional.

Norman Cantor, a Trenton, New Jersey, lawyer, representing Jeffrey May, a New Jersey teacher, who along with several parents and students challenged the law, argued that discussion in the New Jersey Legislature during the debate on the bill demonstrated that supporters wanted the legislation as a way to foster prayer in the classrooms.

Cantor said teachers could use the minute of silence to influence students to pray, particularly in the lower grades where pupils would not understand the meaning of “contemplation and introspection.”

But Rex Lee, representing Alan Karcher, former Speaker of the New Jersey Assembly, said the minute of silence was a “legitimate secular” act designed to quiet down students as the school day began.

He said the law to set aside the minute was mandatory only for principals and teachers, not students, who could use it, or not use it, in any way they wanted.

THE LAW AND A QUESTION OF JURISDICTION

The law reads:

“Principals and teachers in each public elementary and secondary school of each school district in this state shall permit students to observe a one-minute period of silence to be used solely at the discretion of the individual student, before the opening of exercises of each school day for quiet and private contemplation and introspection.”

While the Supreme Court in 1985 ruled unconstitutional an Alabama law providing for a minute of silence for “meditation and voluntary prayer,” the Court may decide the latest case on the technical grounds that Karcher did not have the “standing” to file the appeal.

The Reagan Administration has filed a brief declaring that while it believes the law is constitutional, the appeal should be dismissed because Karcher has no jurisdiction.

The law was adopted in December 1982, when the Democratic-controlled Assembly overrode a veto by Gov. Thomas Kean, a Republican. May immediately filed a suit challenging the law in January 1983.

When neither Kean nor his attorney general would defend the suit, Karcher decided to defend it in his capacity as Speaker. But about the time the Court of Appeals gave its decision in 1985, the Republicans took over the Assembly, and the new Speaker, Charles Hardwick, asked that his name, which had been substituted for Karcher’s on the appeal to the Supreme Court, be withdrawn.

Karcher filed an appeal and Lee maintained Tuesday that he could do so since he was still a member of the Legislature.

Should the court reject the appeal on the ground that Karcher has no legal right to appeal, the lower court decision would stand and the New Jersey law would be stricken from the books.

If the court decides Karcher has the right to appeal and deals with the constitutional establishment of religion issue, some observers believe it would result in a 4-4 split, since the court is short one Justice. This too would uphold the Court of Appeals decision.

However, since half of the states have “minute of silence” laws, the issue is expected to come up again before the Supreme Court.

Among those filing briefs in support of May were: the Anti-Defamation League of B’nai B’rith, American Jewish Congress, American Jewish Committee, Union of American Hebrew Congregations, National Jewish Community Relations Advisory Council, New Jersey Association of Reformed Rabbis, New Jersey-West Hudson Valley Council of the Union of American Hebrew Congregations.

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