JURIST - Hotline: Plaintiffs in Illinois "moment of silence" case lack standing under the Constitution

Jeremy Tedesco [Legal counsel, Alliance Defense Fund]: "The Northern District of Illinois recently struck down an Illinois law that mandates a brief period of silence before the start of each public school day in Sherman v. Township High School District 214. The lawsuit was brought by a prominent Illinois atheist and his daughter, who attends a public school where the moment of silence was implemented. Among other things, the court's decision illustrates the problem with the lax, indeed nearly non-existent, standing "requirements" that some federal courts apply to Establishment Clause plaintiffs.

Pursuant to Article III of the United States Constitution, a plaintiff must demonstrate, inter alia, an "injury in fact" for a federal court to exercise jurisdiction over his case. The United States Supreme Court has explained that this injury must be "actual" and "concrete," and cannot be "conjectural" or "hypothetical."

So what injury can a student possibly claim by being exposed to a room full of completely silent students? There is none. Because every student in a class is silent during a moment of silence, the only way to claim an injury is based on the assumption that other students are praying. But there are several problems with this. First, it is black-letter law that an Article III injury cannot be predicated on mere conjecture, but that is all a plaintiff can rely on in challenging a moment of silence.

Worse, this "I know what you are thinking" theory of standing asks a court to accept the nonsensical - that a plaintiff is "coerced" to pray because he assumes that other students around him are praying, even though he cannot know if they are praying. If we are making assumptions, why not assume that students are using nonreligious modes of silent activity during the moment of silence, like reflecting on an upcoming math test? Is a student "coerced" to reflect on the math test if he assumes a fellow student is silently reflecting on the test? Of course not, and neither is he "coerced" to pray if he assumes a fellow student is praying. This whole theory of standing is a house of cards that tumbles under the slightest scrutiny.

While other litigants must show evidence of a direct and actual injury to satisfy Article III's standing requirements, courts all too often allow Establishment Clause plaintiffs to satisfy these requirements by merely alleging that they think a law violates the Establishment Clause, or that they are offended by the law. That is all the plaintiff in Sherman could muster. If this is sufficient to confer standing, that doctrine no longer exists for Establishment Clause plaintiffs."