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of the right of freedom of speech, also falls within the due process

and equal protection obligations imposed on the states by the Four

teenth Amendment.

See Widmar v. Vincent, 102 S. Ct. 269 (1981).

Therefore, Congress has authority pursuant to Section Five of the

Fourteenth Amendment to enforce the content-neutrality principle upon state administered public schools, by appropriate legislation.

Congress should not be deterred from applying Widmar to public

schools merely because of the refusal of two circuit courts to do

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See Lubbock Civil Liberties Union v. Lubbock Independent School

District, 669 F.2d 1308 (5th Cir. 1982); Brandon v. Guilderland

Central School District, 635 F.2d 971 (2d Cir. 1980), cert. denied

102 S. Ct. 970 (1981).

A recent Congressional Research Service

memorandum commenting on Senator Jepsen's proposed Widmar bill

concludes that since the Supreme Court has not ruled on this issue,

Congress has authority under Section Five to make its own determina

tion and legislate accordingly.

Congressional Research Service

Memorandum at 12.

See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976);

Katzenbach v. Morgan, 384 U.S. 641 (1966).

But see Oregon v.

Mitchell, 440 U.S. 112 (1970).

Furthermore, the Lubbock and Brandon

decisions are subject to serious question because of their apparent

inconsistency with Widmar.

B.

Congressional Authority Over The Appropriations of the

Federal Government.

A bill applying the Widmar principle to public schools is

independently supported by Congressional authority over federal government appropriations. Congress has broad power to attach conditions to its grant-in-aid programs, as long as those conditions

are themselves constitutional.

See, e.g. Fullilove v. Klutznick,

448 U.S. 448 (1980); Steward Machine Co. v. Davis, 301 U.S. 548

(1937); cf. Harris v. McRae,

448 U.S. 297, reh. den. 448 U.S. 917

(1980).

Again, the absence of any definitive statement by the Supreme

Court on whether content-neutrality at the public secondary school level violates the Establishment Clause as applied to religious

speech has led the Congressional Research Service to conclude that

this "proposed condition cannot at this time be said to impose an

unconstitutional condition on federal assistance to such schools."

See Congressional Research Service Memorandum at 6.

In sum, Supreme

Court silence on the Establishment Clause question in the public

secondary school context leaves the Congress free to enact a statute

that would apply the Widmar principle of content-neutrality to public schools in a manner consistent with the Establishment Clause

according to the view of Congress.

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WHAT WOULD BE THE RELATIONSHIP OF A BILL EXTENDING THE WIDMAR
PRINCIPLE TO PUBLIC SCHOOLS WITH THE PRESIDENT'S PROPOSED
PRAYER AMENDMENT?

The President's Prayer Amendment, under its most likely inter

pretation, would solve the problem addressed by a bill extending

Widmar to public schools, that is, the failure of lower courts and

school boards to

so apply the Widmar free speech principle of con

tent-neutrality.

The President's proposed Prayer Amendment reads as follows:

"Nothing in this constitution shall be construed
to prohibit individual or group prayer in public
schools or other public institutions. No persons
shall be required by the United States or by any
State to participate in prayer."

The proposed amendment would seem to address the failure of lower

courts and school officials to allow voluntary, student-initiated religious group meetings on the same basis as non-religious groups

as required by the Widmar content-neutrality principle.

The essence of the prayer amendment is to correct the current

judicial and public misconception that the First Amendment Estab

lishment Clause bars religion from any influence on public life in

general, and public schools in particular.

The effect of the amend

ment's reaffirmation of an earlier understanding would be to allow

reinstatement of non-coerced individual and group prayer in all

public institutions insofar as the First Amendment has been consid

ered a bar. But it would not require such reinstatement, if states

construed such a bar from state laws or constitutions.

As a

corollary effect, the prayer amendment would eliminate use

of the Establishment Clause as a justification for discrimination against meetings and speech of public school students when religious in nature. Thus, the prayer amendment in part pursues the same objective as would a bill applying the Widmar content-neutrality rule

to public secondary schools.

In addition to being compatible with the prayer amendment, a bill applying content-neutrality to public secondary schools enhances the cause of that amendment in several ways. First, Administration and Congressional support of a bill extending the Widmar principle to public secondary schools would demonstrate the resolve of those branches to deal with the loss of voluntary religious activity from public schools. Second, while the President's Amendment will take

at least several years to enact, a statute could correct relatively

quickly the most recent and perhaps the most extreme of the judicial

distortions at which the amendment is aimed. Third, a Widmar bill,

within its sphere of impact, could make an affirmative requirement of neutrality, rather than just removing the federal constitution as the asserted reason for discrimination against religious activity.

Furthermore, a

statute extending Widmar to public schools focuses

attention on those violations of freedom of speech and association

that are most offensive to the overwhelming majority of American

people. This has been indicated in informal conversations between Christian Legal Society attorneys and representatives of several

groups which normally express reservations about state-sponsored prayer, but which endorse the content-neutrality principle.

Congressional hearings on this bill could easily be consolidated

with hearings on the President's Prayer Amendment.

They are simply

two mutually consistent answers to the same problems.

A bill would

be only a temporary solution to a part of the problem; thus, it

would in no way eliminate the need for an amendment.

VI.

PROPOSED LANGUAGE FOR A BILL EXTENDING THE WIDMAR PRINCIPLE
TO THE PUBLIC SCHOOLS

Several good proposals have alrrady been offered for such a bill,

including proposals by Senator Jepsen, Senator Helms, and the law

firm of Ball and Skelly.

The only question is which is best.

Copies of each proposal are attached to this memorandum for refer

ences as appendices.

A.

Christian Legal Society Also Has Drafted Language for a

Widmar Bill in Public Schools.

It Reads As Follows:

"No public secondary school receiving federal
financial assistance, which generally allows
groups of students to meet during non-instruc-
tional periods, shall discriminate against any
meeting of students on the basis of the content

of the speech at the meeting, provided that the
meeting shall be voluntary and orderly and that
no activity which is in and of itself unlawful
need be permitted."*

B.

Explanation of Terms of Christian Legal Society Proposal.

1. The proposed statute limits the application of Widmar content-neutrality to secondary schools. The statute omits refer

ence to primary schools.

This is in recognition that Congress, and

perhaps the Supreme Court as well, might consider the danger of

perceiving state sponsorship from equal treatment of religious

activity too great for primary-age children.

2.

The statute applies only against those schools that

receive federal financial assistance. This self-limitation should

satisfy those who defend the rights of local schools that do not

accept federal funds to administer their programs free from federal

intervention.

Regarding the time period during which a school

must have accepted federal funds to come within the requirements

of this statute, the statute leaves this matter open as the subject

of reasonable and appropriate regulation by proper federal adminis

trative officials, in light of legislative history that should be

clearly established after hearings.

3.

The statute applies to schools that "generally" allow

student meetings.

Use of the term "generally" conforms to the

decision of the Supreme Court in Widmar v. Vincent, 102 S. Ct. 269,

277 (1981).

The significance of the term is that by its use, the

statute applies not to schools which have allowed one or two groups

to meet on a one-time basis, but to schools that allow many student

groups to meet in general. Cf. Congressional Research Service

memorandum (arguing that Senator Jepsen's proposal has a weakness

in its omission of the term "generally.")

4. Use of the term "groups" of students also comports with

the Supreme Court's decision in Widmar.

See 102 S. Ct. at 273.

The

statute by its terms does not require content-neutrality regarding the isolated religious speech of one student absent a listener. (Students are already allowed to pray silently by themselves.)

The statute limits application of content-neutrality to "students". Thus, the statute does not address whether faculty,

5.

*An alternative proposal might add the word "religious" before the word "content" in this statute. See infra at 15.

staff, or school administrators may engage in religious group

meetings on a public school campus.

Again, this limitation com

ports with Widmar, where the Court expressly limited its holding

to students.

102 S. Ct.

at 273 n.5.

6.

The statute demands that the state must not discriminate

against any student "meeting" on the basis of speech,

Use of the

limiting term "meeting" mirrors the holding in Widmar, which precluded content-based discriminations only against student "meetings".

102 S. Ct. at 273. Of course, the statute incorporates the Widmar Court's implicit teaching that not only may states not discriminate against student meetings on a content basis, but also that the

state may not regulate speech occurring in a meeting on a content

basis.

7.

By use of the term "non-instructional periods", the

statute intends to mean any period of time, either before, during,

or after the school day, during which the students who wish to

meet as a group for religious purposes do not have classes or other scheduled activities. A time period unscheduled for class

for several group members constitutes a "non-instructional period"

allowing those members to meet for purposes of this statute, even

though other members officially part of the group have classes scheduled, and therefore cannot meet at that time.

8.

The statute uses the term "discrimination" instead of

the word "exclusion" as used in Widmar v. Vincent for several

reasons.

First, the term "discrimination" better represents the

hostility toward religion that a school board shows by denying

meeting privileges to student religious groups on an equal basis

with non-religious groups. Second, "discrimination" is a broader term than "exclusion". The term "discrimination" includes a prior

restraint policy of total refusal of access to meeting facilities

as was the case in Widmar, as well as after-the-fact penalties against students who chose to attend a religious meeting, and

subtler forms of discrimination against student religious groups

falling short of a total exclusion from meeting privileges.

9.

"Content of the speech at the meeting" is a broad

phrase precluding school officials from discriminating against

many forms of speech, including educational, ethical, religious

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