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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
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.
Attorney-General issued an opinion in which he advised school boards
that the law only permitted voluntary prayer.
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
In Westchester County, New York, a school ran a Christmas
When it came time to sing the hymn "Silent Night," the
teacher stopped the proceedings, and escorted a Jewish child off the
This teacher was also well-intentioned
she didn't want to
compel the student to sing a song contrary to the student's religious
But was this non-participation educationally appropriate or
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
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.,
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
The truth of history and of educational realities was well
sumarized by Justice Frankfurter, concurring in McCollum v.
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
Most recently, this view was reiterated by Judge Irving Kaufman
in Brandon v. Board of Education, 635 F.2d 971, 978 (2nd Cir. 1981)
Our nation's elementary and secondary schools
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
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
By contrast, when the state explicitly sanctions a religious
and under the amendment, it may sanction even a sectarian
and a student is forced to dissent from that
practice, the burden on the child in our judgment is substantially
A religious minority veto of secular practices is radically
"simply refuse to participate." There is nothing simple about it.
The Questions and Answers issued by the White House include the
Q) Will the state government or local school
boards be free to compose their own prayers
Yes. states and communities would be
The White House memorandum (27-28) is even more explicit in this
If school authorities choose to lead a group
would be left to the judgment of local
The proposed amendment also does not specifically
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
Under this amendment, then, school boards would be free to adopt
the prayers of one denomination, and reject as unsuitable prayers of
Even if the history of the First Amendment is read
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-
West Virginia Board of Education v. Barnette, 319 V.S. 638, 642 (1943).
Charles E. Rice, one of the leading
critics of Engel, has argued, in The Prayer Amendment:
Justification, 24 s. C. L. Rev. 705, 710-11 (1972), that the
Establishment Clause was not intended to prohibit favoritism towards
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
The real object of this amendment was not to
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.