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High Court Declines Moment of Silence, Other School Cases

Opening its new term on Monday, the U.S. Supreme Court declined to take up a case challenging an Illinois law requiring a daily period of silent prayer or reflection.

The appeal was one of hundreds that the justices turned away as their summer recess formally ended. Other education cases the court declined to take up involved the outsourcing of public school services to a private religious school, and discipline of students with disabilities.

On Oct. 5, the court will hear arguments in the lone case that it has agreed to review this term involving schools, at least so far. In Hosanna-Tabor Lutheran Church and School v. Perich, the court will examine whether there is a "ministerial exception" to anti-discrimination laws that covers teachers at religious schools. I have a preview story in this week's issue of Education Week under the headline, "Court Case Puts Focus on Parochial School Teachers."

In the moment-of-silence case turned down Monday, a federal appeals court had upheld the Illinois law requiring schools to observe a daily period for "silent prayer or for silent reflection on the anticipated activities of the day."

The state in 2007 made mandatory a previously voluntary daily reflection period in the public schools. The law was challenged by Robert S. Sherman and his daughter, Dawn I. Sherman, as a violation of the First Amendment's prohibition against government establishment of religion.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, last year ruled 2-1 to uphold the law, saying there was a secular purpose behind the daily reflection period, specifically of calming students and preparing them for learning.

In their appeal to the Supreme Court, the Shermans argued that there were split decisions among the federal appeals courts about the constitutionality of moment-of-silence laws. The appeal, prepared by California atheist and attorney Michael A. Newdow, said the case would give the justices a chance to weigh the rights of atheists and their children to be free of religious influences in the public schools.

The Supreme Court expressed some interest in the case, requesting the state of Illinois to file a response to the appeal. Illinois Attorney General Lisa Madigan told the court that there were several procedural problems with the case that would make it a poor candidate for full review, including the fact that Dawn Sherman was no longer a public high school student in Illinois.

The justices declined without comment to hear the appeal in Sherman v. Koch (Case No. 10-1191).

In another establishment-clause case, the justices declined to hear the appeal of a Tennessee school district in a case in which three former school employees challenged the district's decision to outsource its alternative school to a private Christian program.

The question in Jefferson County Board of School Commissioners v. Smith (No. 10-1402) was whether the former principal and two former teachers, who lost their jobs when the public alternative school closed, had legal standing to sue over the decision to hire the Kingswood School, a private institution offering "a Christian environment of love and encourgagement."

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 11-4 earlier this year that the educators had standing as municipal taxpayers to challenge the school district's outsourcing plan on establishment-clause grounds.

Finally, in a special education case, the justices refused to take up the appeal on behalf of a South Dakota high school student with learning disabilities who was placed in an alternative school for 38 days without a formal hearing.

The student, identified in court papers as Jonathan Doe, was suspended for fighting and for possessing a pocket knife. His lawyers and other advocates contended that under the Individuals with Disabilities Education Act, Doe was entitled to a formal hearing for a change in placement that lasted longer than 10 days.

But a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled unanimously last year that the decision to place the student in an alternative program was made by his Individualized Education Plan (IEP) team and that the civil rights suit filed on his behalf amounted to a failure to exhaust administrative remedies under the IDEA. The school district made similar arguments in its brief in opposition to the appeal.

The justices declined without comment to to hear the appeal in Doe v. Todd County School District (No. 10-1411).


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