APPENDIX

Testimony of James M. Smart, Jr.

1. 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.

2. 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 a classroom before school hours began.

5. In Dixon, Illinois (the hometown 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.

6. 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 to 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 prevent 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 school. The Supreme Court declined to review this decision in December, 1981, shortly after deciding Widmar.

7. 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.

8. 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,

a resolution proposing an amendment to the United Constitution restore the right to voluntary prayer in

public schools.

I have no particular qualifications to speak to the question whether school prayer is desirable. Indeed, I think it is important to emphasize that this amendment would not require that a single prayer ever be said by anyone in any school.

It would simply provide that the

decision be made by state and local education authorities

subject to the rights of individual conscience

rather than by the federal courts. As someone whose 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. This proposal would make no change at all in the Constitution as it was understood by those who framed and ratified it. 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 That Congress also

national prayer and thanksgiving.1

reenacted the Northwest Ordinance, providing in part for public schools which were to advance "religion,

within their own states with the intentions of all of

them concerning what powers, if any, the federal constitution 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.
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

6

the federal government but also on the states.
Constitutional historians, however, have generally
been skeptical of the claim that the framers of the
Fourteenth Amendment had any intention to "incorporate"

was

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 framers. 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 16

are important to Americans today 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. If 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.