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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.
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."
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.
PREPARED STATEMENT OF GROVER REES
Mr. Chairman and members of the Committee:
I am here to testify in support of S.J. Res. 199,
I think it is important to emphasize that this amendment
would not require that a single prayer ever be said by
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
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
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
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.