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or vocational speech'but not to the exclusion of speech of other

subject matter.

Any speech "at the meeting" is subject to the

content-neutrality requirement against state discrimination, no

matter whether the discrimination would occur before the meeting

would be held, during the pendency of the meeting, or after the

meeting had ended.


The statute's requirement that student meetings must

be "voluntary" ensures that a public school will neither use student

meetings as a means of infringing the free exercise of religion

rights or freedom of speech "right to hear" rights of students,

nor as a vehicle for state initiated religious or non-religious

activity of the sort that would violate the Establishment clause.


The statute requires that student meetings must be


The term "orderly" is intended to summarize and repre

sent the right and duty of school officials to administer an


tional program without material disruption by students, as established

in 'he case of Tinker v.

Des Moines Independent School District, 393

U.S. 503 (1969).


The statute used the phrase "in and of itself unlawful"

to designate those types of speech that are not normally protected

forms of speech under the First Amendment, such as criminal speech.

A school could prevent students from meeting to discuss illegal

narcotics deals.


Finally, it is important to note that the proposed

language of this statute, in contrast to the language of other

similar proposed statutes, does not use the word "religious", or

purport to "guarantee the rights of religious speech on the same

basis as non-religious speech" for several reasons.

First and

foremost, a statute drawn in strictly neutral terms should draw the support of a number of groups engaged in many different forms

of speech better than would a statute drawn on religious terms.

Second, the Fifth Circuit seized upon the religious focus of a school board's equal access policy in Lubbock Civil Liberties Union v. Lubbock Independent School District, 669 F.2d 1308 (5th

Cir. 1982) to strike down that policy as having an inpermissible

religious purpose condemned by the Establishment clause.

On the other hand, there are good reasons for drafting

the statute to ban discrimination based on the religious content

of speech, rather than banning all content-based discriminations.

Banning all content-based discriminations may be undesirable if it

precludes school officials from protecting students against influence from witchcraft or other harmful activities and ideas.

Senator DENTON. Thank you very much, Senator Hatfield. If my colleague from Oregon wishes to be excused, we will proceed to hear the statement of the distinguished Senator from North Carolina, Senator Helms.

Good morning, sir.


STATE OF NORTH CAROLINA Senator HELMs. Mr. Chairman, having been a committee chairman for some time and presided over many hearings, I know that the most glorious words that a witness can utter at the outset is: I have a prepared statement, Mr. Chairman, but I will not read it all, and I will ask that it be included in the record.

I do that because, to a very large extent, my review of the school prayer matter closely parallels the historical review that the distinguished chairman of this committee, Mr. Thurmond, gave at the outset of the hearing.

But I do thank you and the other members of the committee for the privilege of coming here this morning to testify concerning the President's school prayer constitutional amendment

I think we ought to examine at the outset what this amendment does and what it does not do. It does not impose prayer on anyone. It does not force any child to participate or even listen to a prayer. What it does do is to restore the situation that existed before the extremely unfortunate and unwise decision of the Supreme Courtand there was more than one decision, as the Chair knows—which confused and bewildered the people of this country.

Now, if I may, Mr. Chairman, and with all due respect, comment briefly on some of the observations by the distinguished Senator from Ohio, Mr. Metzenbaum. Now, Senator Metzenbaum is entitled to view things as he wishes. I respect him, though frequently I disagree with him. But his flat challenge, his accusation that those who are trying to seek redress are, quote, eroding the Constitution, end of quote-Senator Metzenbaum is wrong. It was not the Moral Majority or the U.S. Senate or President Reagan who eroded the Constitution in this manner; it was the Supreme Court of the United States. And the Congress of the United States has not only the right but the duty, in the judgment of this Senator, to correct such a grievous error.

Now, Senator Metzenbaum said that he didn't believe in all of these constitutional amendments. Well, he believed in the equal rights amendment; he had no objection to the adoption of that.

As for his comments about efforts to limit the jurisdiction of the Federal courts, I hope that the distinguished Senator from Ohio


and I wish he were here to hear my remarks- I would hope that he would read the Constitution with respect to the right and duty of the Congress in limiting the jurisdiction of the Federal courts.

And then he said, if I heard him correctly, it is very difficult to speak out for the Bill of Rights. Now, at best, I would say to my friend from Ohio, that is a self-serving declaration, but I will say to him in response, that is precisely what we are doing here this morning.

One further word, and I will yield my time, Mr. Chairman.

I have been dismayed by the conduct of the major news media of this country with respect to this issue and some others. And let me give you an illustration.

In October of 1980 I was in Dallas for a meeting, and after the evening meeting I went to the hotel at which I was staying, and, having had no dinner, I went into the coffee shop for a sandwich. Up came a fine-looking young man whom I did not know, introduced himself as Bill Murray, and asked if I was spending the night in Dallas, and I told him I was. Frankly, Mr. Chairman, I thought that he might be the son of the former athletic director of Duke University, Bill Murray. But it turns out that this Bill Murray is the son of Madeline Murray O'Hare. I did not know what to expect, because I did not connect Mr. Murray, and I frankly had not heard of his efforts in connection with restoring prayer in the schools. But I invited him nonetheless to join me in having a sandwich.

During that conversation-and I suppose it consumed the better part of an hour—Mr. Murray told me of the details of how Marxists and out-and-out communists assisted his mother in the lawsuit that led to this Supreme Court decision. He identified by name some of the people who came to his mother's home. And it occurred to me that this was something that the major news media had inadvertently missed.

So not long ago I appeared on a nationwide television program, and during that appearance I suggested to the moderator of the program that that television network might well invite Mr. Murray to come and tell that side of the story. The network has not done it, because, as Mr. Murray himself told me that October evening in Dallas, the minute he begins to discuss the details of how his mother's lawsuit was implemented, down comes the curtain, Mr. Chairman, off go the cameras, and not a mumbling word is said about it.

So I would challenge the news media of this country, and I would remind my friends on the committee that I come from the news media myself, I would challenge them to at least let Mr. Murray be heard, because he is today a dedicated Christian and he is trying to go around this country to apologize for his having been used in a lawsuit that led to one of the most disastrous decisions of the Supreme Court in my memory.

That's about it, Mr. Chairman. I will consume no more of the committee's time.

Senator DENTON. Thank you and good morning to you, Senator Helms.

[The prepared statement and submissions of Senator Helms follow:)


Mr. Chairman, I thank the Chair for giving me the

opportunity to testify concerning the President's school prayer

constitutional amendment.

Restoring the traditional American

practice of voluntary prayer in the public schools has been a matter of high priority with me for the last decade. In the 97th Congress we now have excellent opportunities--perhaps better than at any time since the early 1960's--to make substantive progress in reestablishing and reaffirming the freedom of the American people to

engage in prayer in public institutions.

I therefore applaud the

President and this committee for taking time to consider the

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example, prayer had long been the practice in the North Carolina schools. The custom in North Carolina was similar to the

practice of voluntary prayer in other parts of the country.

Supreme Court's Changing of the First Amendment

The predicate was laid for the Supreme Court rulings of the

1960's in the 1947 case of Everson vi Board of Education, 330

U.S. 1.

In that case the Supreme Court, speaking through Justice

Black, interpreted the Establishment Clause of the First

Amendment as

a restriction on the states for the first time.

Although the Everson decision upheld state reimbursement of

transportation expenses of children in public and private schools, Justice Black advanced an entirely new theory of the

Establishment Clause.

Breaking with the original meaning of the

Establishment Clause as

a restriction exclusively on Congresss,

Justice Black boldly asserted, "The First Amendment, as made

applicable to the states by the Fourteenth, commands that a state

'shall make no law respecting an establishment of religion

The two landmark cases which followed the reasoning of

Ever son and revolutionized the practice of prayer in the schools

were Engel v. Vitale, 370 U.S. 421 (1962), and Abington School

District V. Schempp, 374 0.9. 203 (1963).

In Engel the Supreme

court again applied the Establishment clause against the states

and struck down a requirement of the New York State Board of

Regents that each class begin the school day with this simple


"Almighty God, we acknowledge our dependence upon Thee,

and we beg Thy blessings upon us, our parents, our teachers, and our country." In the Schempp case the court invalidated a

Pennsylvania statute requiring the reading of 10 verses from the

Bible and the recitation of the Lord's Prayer at the beginning of

each school day.

Despite the fact that in both Engel and Schempp objecting

parents could have removed their children from the group prayers,

the Court said that these customary practices violated the First

Amendment as incorporated against the states by the Fourteenth.

Mr. Chairman, I submit that the contemporary construction of

the Establishment Clause by the Supreme Court in these cases and

by the lower courts in countless other cases is a view

fundamentally opposed to the true purpose of the First Amendment.

Furthermore, nothing in the Fourteenth Amendment was intended to

apply the Establishment Clause against the states.

History and Purpose of the First Amendment

There were two glaring errors in Justice Black's reasoning

in the Everson case which have caused much subsequent mischief. First, Justice Black wrongly asserted that the First Amendment was intended to erect a "wall of separation" between church and


Second, he said that the First Amendment grew out of

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