Finally, AASA opposes a constitutional amendment requiring public schools to grant equal access to school facilities to religious groups throughout the nation.

This is a comparatively new effort to merge church and school. In Bristol, Virginia, bible study classes are held in the school house immediately before and immediately after classes. Students volunteer for the classes. Those who do not are required to go elsewhere in the building during these classes. Court action on this program is pending.

Recently the Supreme Court declined to hear a case involving the right of the Lubbock, Texas schools to hold voluntary prayer meetings in school facilities before or after school hours. Earlier, the U.S. Court of Appeals had ruled against the practice as a violation of the 1st and 14th Amendments. Specifically the Court ruled against a Board of Education policy which permitted students to gather at the school before or after school hours to meet for any educational, moral, religious, or ethical purposes..." so long as the meetings were voluntary. The Court of Appeals found the directive a constitutional violation since it specifically related to "religion in the schools."

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The courts appear to be rejecting the concept as constitutionally unacceptable, not out of hostility, but rather a true concern over our heading down a new road of religious establishment.

Aside from the opinion of the court, the AASA recognizes that various school districts throughout the country have, at their own risk, entered into contractual arrangements with religious groups for the temporary use of school facilities, usually for emergency purposes. A constitutional amendment would complicate such voluntary decisions and require all school boards, whether they wished to or not, to grant access to all groups in a way that would surely interfere with school activities. For example, church related activities, following immediately upon student dismissal, would be perceived as an integral part of the school's extra and co-curricular programs. While attendance would be voluntary, it would be apparent to all students in the school that certain religious activity was authorized and, fairly judged or not, established by the Board of Education.

Schools could easily become magnets for all religious groups seeking a new home or additional space. Schools could easily become school-churches. Equipment, materials, and supplies would be in jeopardy and the smooth flow of instruction from day to day would be disrupted. Given the random nature of the groups who would demand access, security would have to be increased and screening would become a full time job.

In effect, the attention, energy, and time of students, teachers, and school administrators could easily be diverted from their primary mission of public education, impeded by such distractions as multiple religious groups competing for the use of public school houses.

In summary, the AASA feels that prayer is a very personal experience and religion an individual matter. Mixing education and religion in the public schools of our diverse society is not wise. Nor is it sound practice to employ the Constitution as a handy remedy to appease those who have been frustrated by court decisions. The Constitution, after all, is the foundation of our national wisdom. The balance of powers provide recourse through the courts to those who feel that their rights have been violated by legislative acts. The interplay of the judicial and legislative branches of government has protected the civil rights of American citizens and sustained this nation's integrity as a democratic society through more than

a century of history. That process should be preserved and the proposed constitutional amendments rejected.

Mr. SCOTCH. Dr. Singer, I also extend the apologies of the committee that there is no Senator here. I assure you that the testimony in the printed record will be a permanent record, a very important one, and that your testimony and the testimony of other witnesses is no less important for the presence or absence of Senators in the room.

I do note that we still have a long list of witnesses. I know that you have come with prepared statements. All statements will be fully included in the record. If it is at all possible, I think we ought to try to adhere to the limit of the lights that control our lives during this hearing, so that everybody can get through.

Ms. Goldsmith?

STATEMENT OF JOANNE GOLDSMITH

Ms. GOLDSMITH. Thank you, sir.

I will simply say that my name is Joanne Goldsmith. I am president of the National Association of State Boards of Education. We represent education policymaking bodies in nearly all the States, the U.S. Trust Territories, and the District of Columbia, and I do wish to thank you for bearing with us this afternoon. You certainly feel our frustration, and we appreciate your staff's frustration for being put in this position.

Mr. SCOTCH. We are very, very interested in what you have to say.

Ms. GOLDSMITH. Thank you. I will try to read quickly.

I would like to make it clear at the outset that our association's general policy on the issue before us is that—and this is voted by our general membership at our annual meeting 2 years ago-"It is inappropriate to allow government to organize, prescribe, or direct prayer in the public schools." The constitutional amendment under consideration clearly would permit public schools to both organize and prescribe a time of prayer. It would also allow volunteer student groups to use school facilities predominantly for religious purposes. We must, therefore, strongly oppose its adoption.

The issue, it should be remembered, is not whether any party is for or against religion. Our association deeply respects all religious faiths and the unquestioned right of individuals to follow their beliefs, whether in religious institutions, in their homes, or in their private moments anywhere.

Nor is the question whether the prayer or meditation that would be permissible under the proposed amendment is spoken or silent. We appreciate the attempt to avoid a common argument in school prayer disputes, that spoken prayer by students of a majority religion would exert undue pressure on other students of minority faiths. But the language in section 1 of the proposed amendment, we believe, still violates the overriding issue at stake, that government should not organize or prescribe a time for prayer in the public schools.

We need scarcely say that any individual student, whether somewhere in a school facility, or on a park bench, or anywhere else, may choose to engage in private, silent prayer. Our objection is to government organization and prescription of the moment.

We also oppose section 2 of the proposed amendment to the Constitution. In this instance, our most fundamental objection is that it is unnecessary and that it is unwise to fetter the Constitution with amendments or matters which are already being resolved satisfactorily by the courts and at the local school district level.

There are circumstances, the lower courts have found, in which students who wish to meet in school facilities for religious discussion may do so, and because I am not an attorney, I will not read those cites; you have heard them before today.

We will go on to say the courts have made it clear, in other words, that voluntary, student-initiated prayer groups using school facilities become suspect when such use is not incidental, but dominant. Indeed, so far as we are aware, in every case in which the courts have rejected so-called "neutral, extracurricular use policy," they have done so because they have found that they were adopted for that purpose and had the effect of advancing sectarian ends. We believe that this is a proper test and one which has permitted use of school facilities by religious groups under appropriate cir

cumstances.

The courts also have established other measures of appropriateness in this area: The age and impressionability of the student, the presence or absence of school personnel, the voluntary or involuntary nature of religious activity. But the foremost test is whether such use is predominantly for religious purposes. We agree with these standards and therefore, oppose the policy reflected in the proposed amendment which would allow them to be violated. We thank you.

Mr. SCOTCH. Thank you very much.

Mr. Dershowitz.

STATEMENT OF NAT DERSHOWITZ

Mr. DERSHOWITZ. Thank you, Mr. Scotch.

My name is Nat Dershowitz, and I am the general counsel to National PEARL, which is the National Coalition for Public Education and Religious Liberty. I am also the director of the Commission on Law and Social Action of the American Jewish Congress.

I would like to thank the committee for having me here, and I am testifying in my capacity as the general counsel for PEARL, of which the National Education Association is a member.

Before testifying, however, I think I would be remiss if I did not state my views as to the nature of these hearings. These hearings seem to be the only hearings dealing with an effort to amend the Constitution of the United States, the Bill of Rights, and the first amendment to the Bill of Rights. It appears as if these hearings are truncated hearings, scheduled to last a maximum of 1 day, at which we have had only a few Senators appearing. I find it extremely distressing that we are holding such short hearings, and second, that they are not receiving the attention that is necessary. To amend the Constitution of the United States, or to consider amending the Constitution of the United States, under these circumstances is quite disturbing.

What is even more distressing is that this is the first time we have ever had an amendment proposed to the U.S. Constitution to

modify not Supreme Court decisions, but lower court decisions. There are no direct Supreme Court decisions on-point. We are dealing here with section 1, with an amendment relating to silent meditation, a matter which has been before a number of the District Courts, but has never reached the U.S. Supreme Court; section 2, the "equal access" amendment, also would overturn_decisions of the lower Federal courts, and not those of the U.S. Supreme Court.

So, for the first time in our 200-year history, we are holding hearings on amending the Bill of Rights to deal with lower court Federal decisions and not with decisions of the U.S. Supreme Court.

But putting aside procedure for a moment and putting aside for a moment the fact that this is not dealing with Supreme Court decisions, on the merits, we are opposed to both aspects of the proposed constitutional amendment. I previously testified in opposition to Senate Joint Resolution 73, and Joel Levy earlier today presented testimony in behalf of the American Jewish Congress, which we adopt in opposition to the silent meditation provision.

What I would like to do in the few minutes that I have is deal with the question of so-called equal access. We believe that those courts which have concluded that students should not be permitted to organize religious clubs on campuses have correctly interpreted the Constitution. I believe it is appropriate, in the moment or two that I have, to discuss just one aspect of that issue and that is the troublesome question which arise in these cases relating to teacher supervision of student religious clubs a practice not precluded by the Hatch proposal.

The presence of a teacher is not a neutral factor in the student's decision whether or not to participate in a particular club. In some cases, students will view a particular teacher as a role model and therefore, imitate him or her as much as possible. Conversely, a student who desires not to participate in a religious club may feel ill-at-ease in the sponsoring or supervising teacher's regular class because of that refusal. This Government thumb on the scale is constitutionally objectionable. The only decision to date which permits such clubs to function, namely, in Bender v. Williamsport Area School District, did not by any means adopt the so-called equality argument that is being advanced as the basis for section 2. The Court emphasized there that the religious clubs in question had disavowed any aid from the schools, such as the announcements over the loudspeaker, publicity on public bulletin boards, and the like The authority thus was limited to the use of the empty classroom and not, as the proposal will have it, equality in general. In addition, the proposal would probably require that some of the financial subsidies that go to the clubs also go to subsidize the religious schools.

What is at the heart of this amendment is the dissatisfaction with the special status accorded religion by the Constitution and by the relevant Supreme Court decisions. But this special status is what we view as so significant. On this central question we disagree with the sponsors of this amendment. Religion, the argument made in support of the amendment goes, should not be treated any differently than comparable secular activities, whether in terms of