BROWN v. GILMORE

Nos. 00-2132, 00-2400.

258 F.3d 265 (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; 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 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.

United States Court of Appeals, Fourth Circuit.

Decided: July 24, 2001.


Attorney(s) appearing for the Case

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...

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