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Testimony of James M. Smart, Jr.


The A.C.L.U. has sued three school districts in

Pennsylvania complaining about, among other things, that two

of the school districts allow religious clubs.

The school

districts decided to settle the case by agreeing to disband

the student religious clubs.


In Williamsport, Pennsylvania, a student group applied

to the local school board for permission to start a club called

"Petros", which planned to hold religious meetings before school,

after school, or during a school club period. The school board refused the request, forcing the students to file suit in federal

district court to seek protection of their rights of freedom of

speech and freedom of assembly.

This case is now pending.

3. In Anderson, South Carolina a public high school opens its doors one-half hour early each day for peaceable student meetings in 'vacant rooms. For some time, a group of students has used this opportunity for voluntary meetings to pursue Bible study, prayer, and worship. Recently, the local representative of the American Civil Liberties Union has publicly threatened to file suit against the local school board to require it to police the content of student speech by banning any meetings with religious content,

4. For several years prior to the 1980-81 school year, students at North Allegheny High School in Pittsburgh, Pennsylvania, had met on school grounds to study the Bible and pray. The meetings occurred during a twenty-five minute period of time after the

arrival of school buses and before the beginning of homeroom

period. When this practice was brought under question, high school administrators and then the superintendent of the school district denied a formal request made by the students to use


classroom before school hours began.


In Dixon, Illinois (the home town of President Reagan),

a local school board has voted to ban all voluntary religious activities of students on school grounds. Also, the same school board will allow outside community groups only four opportunities per year to rent or reserve school facilities for meetings after

school hours if these groups intend religious speech; non-religious

groups enjoy after-hours access without this restriction.


In Brandon v. Guilderland Central School District, 635

F.2d 971 (2d Cir. 1980), cert. denied, 102 S. Ct. 970 (1981), the

United States Court of Appeals for the Second Circuit upheld the decision of the Guilderland Board of Education to ban voluntary, student-initiated religious meetings from school property during,

before, and after school hours with language implying that no religious activity whatsoever is permissible in public schools. The Second Circuit said that an "adolescent may perceive 'voluntary' school

prayer in a different light if he were


see the captain of the

school's football team, the student body president, or the leading

actress in a dramatic production participating in communal prayer

meetings in the 'captive audience' setting of a school."

635 F.2d

at 978.

This language would logically lead school officials to pre

vent students from bowing their heads to say a prayer before lunch,

carrying their Bible to school, or doing any other overt religious

act of free exercise of religion within the boundaries of the


The Supreme Court declined to review this decision in

December, 1981, shortly after deciding Widmar.


In Lubbock Civil Liberties Union v. Lubbock Independent

School District, 669 F.2d 1308 (5th Cir. 1982), the United States

Court of Appeals for the Fifth Circuit went even farther than the Second Circuit did in Brandon, by forcing a total ban of voluntary, student-initiated religious activity in a school district that wanted to accommodate the free exercise of religion and freedom of speech rights of public school students. The Fifth Circuit upset a carefully drafted school board policy, adopted after public deliberation, which purported only to treat all student-initiated groups equally with regard to access to school facilities for meetings

before and after school.


In Johnson v. Huntington Beach Union High School

District, 68 Cal. App. 3d 1, 137 Cal. Rptr. 43, cert. denied,

434 U.S. 877 (1977) (certiorari denied on technical grounds not

related to the merits), the California Court of Appeals held that student Bible clubs could not meet in public school facilities during the non-curricular periods of the school day, because to

accommodate any such meetings would violate the Establishment clause.


Mr. Chairman and members of the Committee:

I am here to testify in support of S.J. Res. 199,

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I think it is important to emphasize that this amendment

would not require that a single prayer ever be said by

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job it is to read and write about constitutional law and

therefore about the federal courts, I think this

transfer of decisionmaking power would be a good thing.

I also think it is important to observe what kind

of a constitutional amendment we

are talking about.


proposal would make no change at all in the Constitution

as it was understood by those who framed and ratified


Rather, it would have the effect of reversing

certain decisions of the United States Supreme Court,

decisions that seem to have been based on the Justices'

ideas about what was right for the country rather than

on their construction of what the Constitution and

its amendments meant to those who framed them.

The original understanding of the First Amendment

was not that government could have nothing to do with

religion. Rather, the Establishment Clause was intended to prohibit the federal government from establishing a

national religion.

This did not mean that prayer could

not be a part of public life, and it imposed no

restrictions whatever on state and local governments.

The First Congress of the United States, the day after

proposing the First Amendment, passed a resolution

requesting that President Washington proclaim a day of national prayer and thariksgiving. 1 That Congress also reenacted the Northwest Ordinance, providing in part

for public schools which were to advance "religion,

,,2. morality, and knowledge.' Although Thomas Jefferson strongly opposed the establishment of religion in his

own state of Viriginia

and it important not to

confuse the views of individual framers on controversies

within their own states with the intentions of all of

them concerning what powers, if any, the federal constitution

3 was to take away from the states Jefferson also

wrote that he doubted whether "the liberties of a

nation" could "be thought secure when we have removed

their only firm basis, a conviction in the minds of
the people that these liberties are the gift of God." 4

Jefferson's idea of what neutrality toward religion meant


perhaps best reflected in his plan to establish several seminaries at the University of Virginia, one for each

5 of the several leading denominations in the state.

The Supreme Court has held that the Fourteenth

Amendment was intended to "incorporate" the Establishment

Clause and make its prohibitions binding not only on the federal government but also on the states. 6 Constitutional historians, however, have generally

been skeptical of the claim that the framers of the

Fourteenth Amendment had any intention to "incorporate"

not make the clause binding on the states.

But he made

it clear that the Justices' apprehension of the Zeitgeist,

and not of the meaning attached to words by those who

wrote and adopted them, was the basis of the school

prayer opinions.

Among those who work in constitutional law it is

considered naive to talk about the intentions of the


It is said that we cannot know what they

intended, and that we might not want to know, so that

the best the courts can do in "interpreting" the

constitution is to divine and enforce the values that

are important to Americans today 16

For some of us at

least, this attitude seems contrary to the whole

rationale for recognizing the Supreme Court as the

supreme interpreter of the Constitution. As articulated

17 by Chief Justice John Marshall in Marbury v. Madison,

the doctrine of judicial review was grounded in the

decision by the sovereign people to adopt a written constitution imposing restrictions on their legislature.

That constitution, said Marshall, is supreme law.


a court is presented with a statute that conflicts with the meaning of the written constitution that was adopted

by the people, then it is his duty (not just his power)

to declare the law unconstitutional. But if it is

impossible to tell what the Constitution really means,

and if the court is enforcing those policies and values

that the Justices regard as fundamental, then there is

no reason that their judgment should be superior to the

judgment of Congress or of the state legislators. When the Court unfetters itself from the historical Constitution,

it also unfetters the rest of us.

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