In 2003, the Texas legislature amended the Texas Education Code, taking a previously optional moment of silence and making it mandatory. The legislature also changed the designated list of options: previously a student could "reflect or meditate"; after the amendment, students could "reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student."
Acting on behalf of their children, David and Shannon Croft filed a lawsuit in federal court, alleging that the moment-of-silence statute violated the Establishment Clause. The trial court dismissed the lawsuit, and the Crofts appealed to the U.S. Court of Appeals for the Fifth Circuit.
In June 2008, we filed an amicus brief in support of the Crofts. We argued that the statute's text and legislative history reveal that the legislature's primary purpose was to advance religion, and that the state’s proffered secular purposes were shams.
In March 2009, the Fifth Circuit upheld the trial court's decision, ruling that the moment-of-silence law had a secular purpose and did not violate the Establishment Clause.