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This delusion of voluntariness is belied by history and

recognized as a fiction by countless educators and other persons who

know how children think and act.

To a child in a classroom, no part of

the school routine is voluntary.

It cannot be made so by the cruel

device of telling them that they are allowed to brand themselves as

pariahs by leaving the classroom or by staying there and remaining

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difference what you call a tail; it is still a tail. Calling this

proposal a "voluntary school prayer amendment" does not make it so.

Two recent cases in which I have been involved will help to

illustrate that these fears are well founded.

Tennessee recently enacted a voluntary prayer bill.

The state

Attorney-General issued an opinion in which he advised school boards

that the law only permitted voluntary prayer.

Nevertheless, one

teacher, doubtless well meaning, began the so-called voluntary prayer session by remarking "that the class would now pray except for 'Sam'

who was Jewish and 'Muhamed' who was a 'Muslim'."

Is that voluntary

non-participation?

In Westchester County, New York, a school ran a Christmas

program.

When it came time to sing the hymn "Silent Night," the

teacher stopped the proceedings, and escorted a Jewish child off the

stage.

This teacher was also well-intentioned

she didn't want to

compel the student to sing a song contrary to the student's religious

beliefs.

But was this non-participation educationally appropriate or

voluntary?

Under the proposal before the Committee today, these and other

It is perfectly clear that there wou ld

cases like them would multiply.

be no legal recourse against such occurrences.

Does this Committee

want to countenance children being embarrassed and humiliated in this

fashion?

And how can enactment of this amendment be viewed as

advancing religious liberty?

Indeed, what actually happens when this unwise practice is

followed is that at least some of the pupils depart from their parents'

religious teachings because of the pressure from their teachers and

peers to conform to the majority view. *

The fiction of "voluntary" action by school children has long

been recognized by the Catholic community by bringing court suits to

compel discontinuance of Bible reading in public schools even where

Catholic children were given the option of reading from their own

version and even though children could be excused from participation.

Catholic opposition resulted in the adoption by the Cincinnati school

board of a resolution bringing an end to the practice of Bible reading

a resolution upheld by the Supreme Court of Ohio in 1872 in Board of

Education of Cincinnati v. Minor, 23 Ohio St.,

211.

Already in 1890, the Supreme Court of Wisconsin gave judicial

recognition to the involuntary nature of school religious exercises.

(State ex rel. Weiss v. District Board, 76 Wisc. 77):

When a small minority of the pupils in the
public school is excluded, for any cause, from
a stated school exercise, particularly when such
a cause is apparent hostility to the Bible, which
a majority of the other pupils have been taught
to revere, from that moment the excluded pupil
loses caste with his fellows, and is liable to be
regarded with aversion and subjected to reproach
and insult. But it is a sufficient refutation of
the argument that the practice in question tends
to destroy the equality of the pupils which the
Constitution seeks to establish and protect, and
puts a portion of them to serious disadvantage in
many ways with respect to the others.

The truth of history and of educational realities was well

sumarized by Justice Frankfurter, concurring in McCollum v.

Board of

Education, 333 U.S. 203 (1947):

* Perhaps in recognition of the fact that public school prayers cannot be voluntary, a recent Gallup Youth Survey (March 1982) showed that public school students opposed, albeit by a narrow margin (45-42), prayer in the public schoois. This suggests that those who are in a position to know best reject the illusion of voluntar iness.

That a child is offered an alternative may
reduce the constraint; it does not eliminate
the operation of influence by the school in
matters sacred to the conscience and outside
the school's domain. The law of imitation
operates, and non-conformity is not an out-
standing characteristic of children. The
result is an obvious pressure upon children
to attend.

Most recently, this view was reiterated by Judge Irving Kaufman

in Brandon v. Board of Education, 635 F.2d 971, 978 (2nd Cir. 1981)

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Our nation's elementary and secondary schools
play a unique role in transmitting basic and
fundamental values to our youth. To an
impressionable student, even the mere appear-
ance of secular involvement in religious
activities might indicate that the state has
placed its imprimatur on a particular religious
creed. This symbolic inference is too dangerous
to permit.

Proponents of school prayer argue (White House Memo at 34) that

just as students opposed to saluting the flag for religious reasons are

not entitled to stop other students from doing so, West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. (1943), students opposed to school

prayer should not be empowered to prevent other students from praying.

The analogy is seriously flawed.

When a school engages in a secular ceremony, such as a flag

salute, it neither intends to, nor does it, make any statement about

religion.

When a student from a minority faith has religious

strictures against that practice, he is not required to dissent from a

state-sanctioned religious practice.

And any rule which prohibited

schools from teaching a subject which some religious group objected to

wou ld bring the schools to a halt.

Excusal, then, is the only

practicable result.

By contrast, when the state explicitly sanctions a religious

exercise

and under the amendment, it may sanction even a sectarian

religious exercise

and a student is forced to dissent from that

practice, the burden on the child in our judgment is substantially

greater.

A religious minority veto of secular practices is radically

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"simply refuse to participate." There is nothing simple about it.

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The Questions and Answers issued by the White House include the

following:

Q) Will the state government or local school

boards be free to compose their own prayers
if this amendment is ratified?

A)

Yes. states and communities would be
free to select prayers of their own choosing.
They could choose prayers that have already
been written, or they could compose their
own prayers.*

The White House memorandum (27-28) is even more explicit in this

regard.

SO

If school authorities choose to lead a group
prayer, the selection of the particular
prayer subject of course to the right of
those not wishing to participate not to do

would be left to the judgment of local
communities, based on a consideration of such
factors as the desires of parents, students
and teachers and community interests consis-
tent with applicable state law. The amendment
does not limit the types of prayer that are
constitutionally permissible and is not
intended to afford a basis for intervention by
federal courts to determine whether or not
particular prayers are appropriate for indivi-
duals or groups to recite.

The proposed amendment also does not specifically
limit prayer in public schools and other public
institutions to "nondenominational prayer." A
limitation to "nondenominational prayer" might

*

This frank recognition that the prayers sanctioned by the proposal would indeed be written or selected by public officials was presumably dictated by necessity. Obviously, procedures in school rooms have to be conducted under the control of the school staff. They cannot be left to happenstance.

The Answer goes on to say: "... communities are a more appropriate forum than federal courts for decisions about the content of school prayers." This comment is unworthy of the White House. Certainly those who prepared this document know that no federal court has chosen content for school prayers. What they have held is that school authorities may not do so.

well be construed by the federal courts to rule
out virtually any prayer except one practically
devoid of religious content.

Under this amendment, then, school boards would be free to adopt

the prayers of one denomination, and reject as unsuitable prayers of

others.

Even if the history of the First Amendment is read

wrongly,

we believe

to permit government to affirmatively foster religion

generally,* it seems conceded by all that the Amendment was designed at

a minimum to prohibit government from sanctioning one religion at the

expense of all others.

If there is any fixed star in our constitu-
tional constellation, it is that no official,
high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion,
or other matters of opinion or force citizens
to confess by word or act their faith therein.

West Virginia Board of Education v. Barnette, 319 V.S. 638, 642 (1943).

Charles E. Rice, one of the leading

and few

academic

critics of Engel, has argued, in The Prayer Amendment:

A

Justification, 24 s. C. L. Rev. 705, 710-11 (1972), that the

Establishment Clause was not intended to prohibit favoritism towards

theistic religions.

In support of this proposition, Professor Rice

cites Justice Story, Commentaries on the Constitution, $S 1874, 1877

(5th Ed. 1891). who argues that the clause prohibits only prefere

es

amongst Christians:

The real object of this amendment was not to
countenance, much less to advance, Mohammedi an-
ism, or Judaism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among
Christian sects, and to prevent any national
ecclesiastical establishment which should give
to a hierarchy the exclusive patronage of the
national government.

Even if this Christian ** centered view of the intent of the

Those anti-federalists who opposed the adoption of the Constitution advocated this view. Their views on this subject were rejected. See Storing, What the Anti-Federalists Were For (1981).

** Indeed, one could accurately say Protest ant.

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