Although two or three federal court decisions contain dicta to the effect that silent prayer or meditation provisions would not violate the Establishment Clause, Gaines is the only case in which the court was directly presented with the question, and its holding has apparently never been cited by any federal court, or in any court other than the Massachusetts state courts.

In conclusion, supporters of school prayer

even if they were willing to settle for a moment of silent prayer or would not be wise to rely on the federal

meditation

courts to be the guarantors of such a compromise. The constitutional amendment proposed by President Reagan would allow state and local education authorities to choose among competing policies toward prayer in public schools. I am personally persuaded that the provision of a moment of silent prayer or meditation is the best solution advanced so far for the accommodation of all points of view. The ratification of the Reagan amendment would present no obstacle to the choice of this solution by school authorities; indeed, it would resolve the doubts about the constitutionality of official

provision for silent prayer that are currently cast by

the federal court decisions I have discussed.

Senator SPECTER. And I would be interested if there is any difference of opinion

Professor Redlich?

Mr. REDLICH. I think that if we talk about a period of silent meditation or prayer, I think that is a close question and I think there is a reasonably good chance that it would be sustained. A period of silent prayer, I think, perhaps raises a-the same type of issue we have been talking about, but I think silent

Senator SPECTER. Would you amplify the distinction which you see?

All of those who read this record, and some will, may not understand it.

Mr. REDLICH. Well, I think it is possible for a person to meditate in a perfectly nonreligious manner and an opportunity to meditate at the start of the day about any one of a number of things that they might meditate about, is different from specifically saying that this is devoted to prayer.

Senator SPECTER. So you think the difference would be, if you say case 1, this time is devoted to prayer, you may pray or not.

Case 2, this time is devoted to prayer or meditation, you may pray or meditate, or neither?

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Mr. REDLICH. You know, I know you are saying that those are fine lines and they are fine lines.

Yes; my answer is that would be the line, and you know in many respects we have drawn very fine lines like that on the question of aid to religious schools.

Where the tests can be held, who administers the tests, and I think that is an inevitable

Senator SPECTER. We have drawn dotted lines and blurred lines, drawn all sorts of lines, drawn nonlines.

Mr. REDLICH. I do not find that an unreasonable one.

Senator SPECTER. Does anybody have a different view on the issue as to whether just silence, be it silence for prayer or meditation or both, an option to do neither, would anybody disagree that that would be constitutional?

Mr. STONE. I would simply elaborate.

I would think the conclusion of that, a time of silence is permissible, is not only the current state of the law, but in fact that it is a reasonable understanding. That is, there are important differences that should not be missed. It is not a simple line drawing question. In the situation of time being allowed for meditation or prayer, the Government is not involved in the composition or selection or promotion of any particular prayer. The individual student is not directed to pray and the individual student is not faced with the choice of having either to pray or to leave the room, or to remain conspicuously silent when others are praying. So that there are important reasons underlying the distinction between Governmentsponsored prayer on the one hand and the time of meditation on the other.

Senator SPECTER. I asked Mr. Schmults a question on this subject when he testified here, and he was dissatisfied with that scope of voluntary prayer, and he responded that he thought it appropriate to allow local boards to make decisions, local school boards to make decisions, and in effect, said that there is no reason to think that local boards will be less responsible to the Supreme Court or the professors or deans of America's finest law schools, no reason to think that they would be less sensitive as they would choose what would occur during this period of time.

What reason do you gentlemen have-one lady has left, apparently to think that the school boards would be less sensitive?

This is an argument which was raised with some repetition in this room as we meet and argue on what we call markups. We have a significantly divided Judiciary Committee and again and again many will say, why should not we leave it to the States or the local governments, and why does the wisdom solely come from the Supreme Court of the United States, or whichever five are alined at the moment?

Mr. SANDALOW. Senator, if I may.

The Deputy Attorney General's statement rather misconceives the problem.

To my knowledge, the Court has not sanctioned either it or any other court in the United States composing a prayer to be stated by students in any school. The issue is not whether the Court is better or less qualified than a school board to compose a prayer; but

whether any official body should be composing prayers in the United States.

Senator SPECTER. But Dean Sandalow, why would you think that a school board would compose a prayer which would be offensive to anyone?

Mr. SANDALOW. I think that among the several thousand school boards in the United States, one ought to anticipate a variety of different responses.

My expectation, quite frankly, is that most school boards will react with sensitivity to the diversity of religious beliefs within their communities. I think it is-it would be extraordinary, however, if everyone of the several thousand school districts in the United States were to respond 'hat way.

Senator SPECTER. All right.

So assume that some are nonsensitive. There is represented to be an enormous body of opinion in this country, some which I have seen in my travels around my State where they're very offended by the absence of prayer or an opportunity to pray, or at least a word that you cannot pray.

There is always, the Senate, they open with a prayer, prayers are here and prayers are there, why cannot we have prayers?

Now, there are a lot of people, some people, who are offended by the current state of the law. How do you balance out?

Mr. SANDALOw. As I have indicated in my statement, which will appear on the record, my own view is that the beliefs of those people are entitled to some recognition and I think that the Judiciary Committee could perform an extraordinarily useful purpose if it would undertake a study that might point the way to some guidelines, building on the Widmar decision in which those people who feel the need for public prayer at the beginning, before the beginning, or after the conclusion of the schoolday, might be provided an opportunity to do so.

I think that safeguards are necessary to assure, of course, that it is voluntary, to assure that religion is not given a perverted position as it was not in the Widmar case. But it ought to be possible. Senator SPECTER. How would you do it?

Would you have an idea as to how their concerns might be accommodated along with yours?

Mr. SANDALOW. Yes, I think it would be-my own view is that it ought to be held permissible, consistent with the Constitution that we now have without an amendment for schools to grant permission to devotional Bible reading groups or prayer groups meeting outside of the normal school hours on equal terms with other sources of extracurricular activities.

Senator SPECTER. After school?

Mr. SANDALOw. Either before or after school, but make the classroom available in the same way that you might make a classroom available to the young Democrats or the basketball team.

Senator SPECTER. Young Republicans?

Mr. SANDALOw. Even young Republicans.

Senator SPECTER. Is that consistent with Engle and Abington in all of your legal judgments?

Mr. REDLICH. I would like to pick up an answer to your earlier question.

You asked why a school board would design a prayer which would be offensive and, my answer is, they have to, because there is no such thing as a religious prayer that is not going to be offense to some religious group, and it is only if we think of ourselves in terms of being all and part of a majority, all Christian, or one Christian sect, or all Jews, or all members of monotheistic faith, that one could conclude that a so-called nondenominational prayer is not offensive. The New York nondenominational prayer which was declared unconstitutional in Engle, was analyzed by a colleague of mine, Prof. Edmund Kahn, in a brilliant article and he demonstrated how that prayer was offensive to a whole range of religious faiths and, reading that prayer, you would think that it was the most purely nondenominational prayer that you could find.

I simply wanted to add that.

May I respond to you last question?
Senator SPECTER. Please do.

Mr. REDLICH. Your last question now.

I think there is the procedure that Dean Sandalow has outlined; it is not clearly unconstitutional under Engle and Schempp. I think it would still be an open question.

I do think, however, it would be terribly important under those circumstances that the public facilities be one, as in Widmar, which are open alike to a whole range of activities of which a prayer group might be one; that there be no indication of any imprimatur of approval, that it be open to all types of religious groups and that it not be part of the academic day.

Now, if all those, and perhaps other conditions might be met, and that are worth exploring, then I think one could create a situation similar to that which the Supreme Court approved in Widmar. Mr. SMART. Mr. Chairman, if I might address that, also? Senator SPECTER. Yes, please do, Mr. Smart.

Mr. SMART. I would like to amen, if I could--
Senator SPECTER. Is that OK? [Laughter.]

Mr. SMART. Dean Sandalow's comments and would point out to the committee that the last two pages of his prepared statement mentioned this problem, and I think that looking pragmatically at the fact that there are a lot of people who want to do something, so that religion does not feel completely alienated from public life completely, and, on the other hand, there are many people who are afraid of government-sponsored prayers, that this committee can, rather than simply leave the high school situation or the type of situations we have just been talking about, rather than leave it to the courts, since the Supreme Court has appears to have no desire to get into the issues at this time, I would suggest that the committee consider legislation in this area, that would extend the Widmar principle with language consistent with the Widmar decision, to lower courts.

It would satisfy the people who feel the need to have religion, to be accommodated to some extent and it would not be offensive to most people who would realize that the Government would not be sponsoring religion or favoring it, but simply treating it on an equal basis with other activities.

Senator SPECTER. What do you think about that, Mr. Rees?

Mr. REES. Well, Prof. Van Alstyne expressed some federalism concerns and, speaking not as a student of the Constitution, but as a federalist or a political conservative, I have problems with attaching strings to Federal funds. It depends on how important the object is as compared to the principle of letting State and local governments make their own decisions on policy questions. As a political matter, I should say that attempts to achieve objects that are not considered "liberal" by attaching Federal funds invariably fail. Liberals will not support such attempts because they disagree with the ends, and some conservatives will not support them because they object to the means.

Senator SPECTER. But there is no suggestion to attaching Federal funds, is there, to what Mr. Smart has just referred to?

Mr. SMART. The proposal mentioned in my prepared statement does use that. It was felt that

Senator SPECTER. Could not there be Federal legislation saying that this simply could be done without passing?

Mr. VAN ALSTYNE. Pursuant to what power?

There is no power to prescribe the order of the day in community and State fund schools. There has to be an enumerated or implied power, and I gather the origin of the suggestion was to use that which is to the largess spending power.

There is no direct-I do not mean any disrespect, but it is simply not given to Congress to construct the States respecting their responsibilities in the formulation of extracurricular events.

You have to attach it to some-it is barely imaginable, although I find it distasteful that we can abscond with the Congress power. Senator SPECTER. Some say that the Congress has been doing that for a long time.

Mr. VAN ALSTYNE. Yes, but in a largess sense, we are gracefully moving to a kind of congenial alternative in this body and as much as I would appreciate the benefit of being rescued from this amendment by that alternatives, I think we will have lots and lots of problems at this time. It surely cannot specify many who want something more emphatic and more explicit.

The mere equivalent, after school hours of prayer groups, the same groups as philatelists-those interested in stamp collections, or coin collectors, you cannot account for this zeal, even as it entangles Congress in a whole series of prayer decisions.

Senator SPECTER. Do you prefer the amendment-some inequity to implement Widmar on a national basis?

Mr. VAN ALSTYNE. I do not think that the carrying through with the spirit of that case, equal protection to voluntary association on the campus, requires an agreement.

To that extent, I agree with my colleagues. It is a very interesting decision.

Senator SPECTER. Could we expand Widmar somehow to provide that opportunity as an alternative?

Mr. VAN ALSTYNE. It is not meant to sidetrack your interest here or the proceedings at all. My suggestion is that because the decision is quite new and its ultimate horizons are yet to be explored, I think it is premature for Congress to try to legislate it on the basis of what that holding might mean.