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:]

From: Grover Rees III

October 4, 1982

To: United States Senate Judiciary Committee

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 can 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 Soviet Union. 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 important sense, even under the current decisions of the Supreme Court. 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. Although I believe the case to be correctly decided, this belief is based

far as

Gaines is inconsistent with the

largely upon my conviction that the Supreme Court's prayer decisions were incorrect. language and the reasoning of the Supreme Court opinions and other federal decisions on school prayer, and should not be cited as 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
and messages of great Americans, for example, or from
the documents of our heritage of liberty, daily
recitation of the Pledge of Allegiance, or even the
observance of a moment of reverent silence at the opening
of class, may not adequately serve the solely secular
purposes of the devotional activities [that were involved
in Schempp] without jeopardizing either the religious
liberties of any members of the community or the proper
degree of separation between the spheres of religion and
government.

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.

Moreover, Justice

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

Id.

out that one test of the constitutionality of the various inspirational exercises to which he alluded was whether they "do in fact serve religious goals" as well as secular ones. at 281. While it is true that courts are often deferential in their approach to legislative motive, reliance on such deference as 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 rights of dissenters

as it is to the American Civil

Liberties Union, whose Massachusetts affiliate argued that the statute in Gaines was an unconstitutional establishment

of religion.

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 of 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.

See Lemon

v. Kurtzman, 403 U.S. 602 (1972); Committee for Public
Education v. Nyquist, 413 U.S. 756 (1973). A primary
religious effect might be established by evidence that
(whatever the motives of the legislature in passing the
law) students overwhelmingly regarded the moment of
silence as a time during which they were expected to
worship.

"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." Indeed,

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 faction and a nonreligious faction. Lemon, supra.

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 and religion. See, e.g., Stone v. Graham, 441 U.S. 39

nature

(1980) ("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.").