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It is my impression that courts may have found some of the offensive introductions to which Dean Sandalow refers. I have not seen the Legislative Reference Service report, but when I looked at a number of cases 3 or 4 months ago, I had the impression that the silent prayer decisions were divided.
It is important, on the fact situation to which Professor Bender refers, to note that while the court did hold in Widmar v. Vincent, that it was not unconstitutional for universities to permit group voluntary prayer after school, on the same terms as they let other groups meet, the Supreme Court has treated universities quite differently than they have treated high schools and elementary schools. They have drawn some theoretically problematic distinctions in the financing cases, and they denied certiorari on an extraordinary case in the second circuit, Brandon v. Guilderland Board of Education, in which the court said that it was a violation of the establishment clause for student groups to be allowed to meet after school during what was called the school day, while the students were still around, on the same terms as other groups.
So I do not think it is as clear as Professor Bender suggests that schools can find ways to accommodate students who desire to pray, under the present decisions.
Senator SPECTER. I had reviewed that legislative—that legislative analysis and my feeling was that it was an open question, and not really clear.
If you would care to submit something further, Professor Rees, we would be pleased to receive it.
Mr. Rees. I will. [Subsequent to hearing Mr. Rees submitted the following article:)
October 4, 1982
From: Grover Rees III
Re: Silent Prayers and the Federal Courts
Opponents of a constitutional amendment to restore the
right to pray in public schools are fond of observing that
students already have such a right: they can pray whenever they
wish, so long as they pray silently.
On one level, this statement
is both correct and trivial: One can do anything anywhere so long
as one is careful to do it in such a way that nobody notices.
The use of the term "right" to denote the fact that one
pray with impunity so long as one prays silently would entail
a radical reappraisal of the extent to which human rights should be said to exist in authoritarian and totalitarian regimes
around the world.
In this sense of the word, students have the right
to pray in school not only in the United States but also in the
Citizens of South Africa and Cambodia have the
right to call for the overthrow of the government, so long as
they do it silently.
At the Senate Judiciary Committee hearing on the school
prayer amendment, several amendment opponents argued that state
or local education authorities have the power to grant or
recognize a right to silent school prayer in a different and more
even under the current decisions of the
The principal authority for this argument seems
to be Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976), in
which a three-judge federal court upheld a state statute providing
that "a period of silence not to exceed one minute in duration shall
be observed for meditation or prayer" in public schools. So
I am able to determine, Gaines is the only reported federal
case holding that states may allow students even such limited
opportunities for prayer during the school day.
believe the case to be correctly decided, this belief is based
largely upon my conviction that the Supreme Court's prayer
decisions were incorrect.
Gaines is inconsistent with the
language and the reasoning of the Supreme Court opinions and
other federal decisions on school prayer, and should not be
a reliable indication of how other federal courts
will treat official endoresement of the opportunity for silent
prayer or meditation in public schools.
The opinion in Gaines relied on Justice Brennan's dictum
in Abington Township v. Schempp, 374 U.S. 203 (1963):
It has not been shown that readings from the speeches
Id. at 281 (Brennan, J., concurring).
It is important to observe,
however, the context in which Justice Brennan's remarks were made.
He was responding to arguments that school prayers served valid
secular purposes, such as "fostering harmony and tolerance among the pupils, enhancing the authority of the teacher, and inspiring better discipline." Id. at 280. He did not even
purport to hold that official provision for silent prayer would
always be permissible; his allusion was designed simply to show
that audible prayers were not necessary to achieve any secular
purposes, since there were other means available that had
"not been shown" to be objectionable.
Brennan's remarks would seem to have no application at all
to an official moment of silent prayer or meditation that
was not intended to serve only secular purposes such as
fostering harmony, inspiring discipline and enhancing the
authority of the teacher.
To the exact extent that opponents
of a "moment of silence" can succeed in convincing the court that its real purpose is to allow students the opportunity to worship God in a public setting, the "solely secular purposes"
rationale will be inapplicable.
Indeed, Justice Brennan pointed
out that one test of the constitutionality of the various
to which he alluded was whether they
"do in fact serve religious goals" as well
as secular ones.
While it is true that courts are often de ferential
in their approach to legislative motive, reliance on such
a means of upholding the constitutionality of
official opportunities for silent prayer amounts to saying
that courts will permit legislatures to accomplish by
subterfuge what they will not be permitted to do overtly.
Such an approach can be expected to be as distasteful to
supporters of school prayer
many of whom wish to make
precisely the point that the United States is "a nation under
God" in which it is permissible to prefer religion over
nonreligion in ways that do not violate the free exercise
Even if the courts were to find that a moment of
silence had a secular purpose
either by overlooking
the real purpose of the law, or by defining that purpose
as the accommodation o
free exercise rights, an approach
followed in Gaines but rejected in other federal decisions
it could be held unconstitutional either for having a
"primary religious effect" or because of the risk of
"entanglement" between the state and religion.
v. Kurtzman, 403 U.S. 602 (1972); Committee for Public
Education v. Nyquist, 413 U.S. 756 (1973).
religious effect might be established by evidence that
(whatever the motives of the legislature in passing the
law) students overwhelmingly regarded the moment of
a time during which they were expected to
"Entanglement" might be the supervision of the
exercise by the teacher, or perhaps the teacher's announcement
that the students were to meditate "or pray."
the Court has held that a law involving religion may
entail impermissible "political entanglement" if political
division over the wisdom or unwisdom of the law tends to
be along religious lines, or even tends to demarcate a religious
a nonreligious faction.
No other federal court seems to have faced the problem
addressed in Gaines, but decisions in related areas suggest
that federal courts are increasingly impatient with laws
designed to permit even unobtrusive and attenuated breaches
of the court-created "wall of separation" between schoolchildren
Stone V. Graham, 441 U.S. 39
("The pre-eminent purpose for posting of the Ten
Commandments on schoolroom walls is plainly religious in
and no legislative recitation of a supposed
secular purpose can blind us to that fact."); Nyquist, supra
(where the United States Supreme Court held that tuition
vouchers and tax credits available to students at religious and
nonreligious schools were unconstitutitonal, since most of
the vouchers and credits would in fact be used at religious
schools); Brandon v. Board of Education of Guilderland
Central School District, 635 F.2d 971 (2d Cir. 1980) (public
school need not allow a student group to meet after
school for voluntary prayers on the same terms as other
student groups are allowed to meet, since such meetings by
the student prayer group would violate the Establishment
Clause); Lubbock Civil Liberties Union v. Lubbock Independent
School District, 669 F.2d 1038 (5th Cir. 1982) (the Establishment
Clause forbids a school board to permit students "to gather
at the school with supervision either before or after regular school hours on the same basis as other groups
. . for any educational, moral, religious or ethical purposes," since such a provision "has the primary effect of advancing religion.").