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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
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
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.
Congressional Authority Over The Appropriations of the
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
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.
WHAT WOULD BE THE RELATIONSHIP OF A BILL EXTENDING THE WIDMAR
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
The President's proposed Prayer Amendment reads as follows:
"Nothing in this constitution shall be construed
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.
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.
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.
PROPOSED LANGUAGE FOR A BILL EXTENDING THE WIDMAR PRINCIPLE
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.
Christian Legal Society Also Has Drafted Language for a
Widmar Bill in Public Schools.
It Reads As Follows:
"No public secondary school receiving federal
of the speech at the meeting, provided that the
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.
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
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.
The statute applies to schools that "generally" allow
Use of the term "generally" conforms to the
decision of the Supreme Court in Widmar v. Vincent, 102 S. Ct. 269,
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.
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,
*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
102 S. Ct.
at 273 n.5.
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
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.
The statute uses the term "discrimination" instead of
the word "exclusion" as used in Widmar v. Vincent for several
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.
"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