of the church, while others reject them entirely; State ex rel. Weiss v. District Board od School Dist. No. 8, supra, at 972. Adoption of the Prayer Amendment would open the way for each of these issues, and manifold others that divide religious groups, It would invite the to become the subject of political dispute. adherents of each of the many religions represented in our nation to seek official sanction for its version of religious truth, if only to ward off the efforts of others. Testimony before the Committee, even by those who are generally supportive of the amendment, reveals that the problem cannot be avoided. It inheres in any attempt to formulate prayer through a political process. Thus, a spokesman for the National Association of Evangelicals objected to the supposedly "nondenominational" prayer involved in Engel v. Vitale. "That kind of prayer, routinely repeated every school day, is far removed from the kind of meaningful religious expression that should be permitted in the public schools." Statement of Robert P. Dugan, July 29, 1982. Yet, it is apparent that prayers acceptable to the membership of the National Association of Evangelicals, prayers they would regard as a "meaningful religious expression," 2/ would contradict the deeply-held beliefs of many others.if the Prayer Amendment were to be adopted, it is not obvious what alternative evangelicals would have to seeking modes of prayer that would, in their view, offer their children an opportunity for "meaningful religious expression." But, The success with which the United States has managed its unique religious pluralism is in substantial part attributable to its having been able to avoid pitting religious groups against 2. It should be noted, to the credit of Mr. Dugan and the Association he represents, that they are sensitive to this difficulty and urged revision of S.J.Res. 199 to preclude any governmental influence on the content of prayers in the public schools. one another in the political arena. No doubt, the, good will that our traditions have fostered would lead many to act with restraint even if the Prayer Amendment were adopted. But the risk is nonetheless great that adoption of the amendment, by inviting the establishment of official prayer, would lead to a significant increase in religious dissension. The removal of a constitutional restraint upon the establishment of official prayers is not the only objectionable feature of the proposed amendment. In recent years, a number of school dis tricts have authorized teachers to lead their classes in prayer at the beginning of the school day or to select students to do so. Courts that have considered the practice have uniformly held it an impermissible establishment of religion. Karen B. v. Treen, 653 F.2d 897, aff'd 102 S.Ct. 1267 (1982); Kent v. Commissioner of Education, 402 N.E.2d 1340 (Sup.Jud. Ct. of Mass. 1980). See also, Collins v. Chandler Unified School Dist., 644 F.2d 759 (9th Cir. 1981), cert. denied 102 S.Ct. 322 (1981). Adoption of the Prayer Amendment would overturn these decisions and render the practice permissible, almost certainly leading to its institution in some school districts. Although a policy permitting students and teachers to lead prayers would avoid the need to compose official prayers, and the political divisiveness that would attend that activity, it would increase the risk of religious activity in the nation's classroom that would be deeply offensive to many parents and children. Many, perhaps most, teachers and students might be expected to act with sensitivity toward the diversity of beliefs represented among the student body, but it seems hardly open to doubt that among the tens of thousands of teachers and millions of students in the nation's public schools there would also be many who would regard the opportunity to lead prayer as an opportunity to proselytize or who would merely act with insufficient sensitivity to the beliefs of others. The record in Kent v. Commissioner of Education, supra, demonstrates that such concerns are not fanciful. It disclosed that among the prayers offered by students were some that were clearly denominational, such as the Lord's Prayer and Hail Mary, and others that would undoubtedly be regarded by some as offensive because directed toward trivial secular objectives, such as victory in a volleyball game. Reliance upon the administration and governance processes of the schools to avoid such problems would place school officials in the intolerable position of censoring prayers. In brief, the offering of public prayers as part of the daily routine of public schools cannot be accommodated within a society as religiously varied as ours. A constitutional amendment that would remove all constitutional restriction on such prayers risks both a significant increase in religious discord and daily affront to the religious sensibilities of large segments of the population. Nevertheless, the interests of those whose beliefs require such prayer ought not to go unrecognized. Opponents of the Prayer Amendment have frequently suggested that those interests are sufficiently recognized by the opportunity for silent prayer and for prayer in settings other than the schools. Yet, the beliefs of many parents and children appear to require more, an opportunity for a public profession of faith and for public prayer as part of the daily routines of life. Although the schools may not, as the courts have held, have a constitutional obligation to accommodate these beliefs, respect for the parents and children who hold them ought, in my judgment, to lead us to do so as a matter of policy if a suitable means can be found for doing so. As least, there ought not be a constitutional obstacle to a school board's power to adopt such a policy. In a number of school districts, children have sought permission to use schoolrooms, before or after the commencement of the school day, for voluntary prayer or devotional Bible-reading. Several lower courts have held that the establishment clause denies the schools authority to confer such permission. See Brandon v. Board of Education of the Guilderland Central School Dist., 635 F.2d 971 (2d Cir. 1980), cert. denied 102 S.Ct. 970 (1981); Johnson v. Huntington Beach Union High School Dist., 137 Cal. Reptr. 43 (Ct.App.), cert. denied 434 U.S. 877 (1977); Trietley v. Board of Education, 65 A.D.2d 1 (1978). Although the concerns that have led the courts to this conclusion, especially the risk that the imprimatur of the schools would be placed upon religious activities and the fear that children might be coerced into attendance, are matters that require serious attention, one wonders whether a solution for them might not be found that would more fully recognize and accommodate the needs of families whose beliefs do require an opportunity for their children to open the day with public prayer. This is not an appropriate occasion for a full constitutional analysis of the issue, but I may say that I am far from persuaded that a carefully designed policy would not pass judicial muster. Cf., Widmar v. Vincent, 102 U.S. 269 (1981). A careful study of the issues by the Judiciary Committee might greatly assist local school districts that wish to consider such a policy and lead the way toward a resolution of the school prayer issue that is more sensitive to the contending interests than S.J. Res. 199. PREPARED STATEMENT OF GEOFFREY R. STONE Twenty years ago, in Engel v. Vitale,' ,1 the Supreme Court invalidated the practice of government sponsored prayer in the public schools. In 1951, the New York Board of Regents, "aware of the dire need to pass on America's Moral and Spiritual Heritage to our youth," devised a prayer to be recited at the opening of classes each day to "strengthen Supreme Being."2 The prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country." The Board of Education for the New Hyde Park school district directed that the Regents' prayer "be said daily in our schools."3 The prayer was said Students aloud at the beginning of classes each day, led by the teacher or a student singled out by the teacher for this purpose. who did not wish to participate were excused from participation or permitted to leave the classroom. 5 The Court, in a six-to-one decision, held that "by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause."4 Justice Black, speaking for the Court, explained that "this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. As a result, Black noted, the framers of the First Amendment "knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval," and the First Amendment "was added to the Constitution" in part to assure "that the people's religions [would] not be subjected to the pressures of government for change each time a new political administration is elected to office."6 Thus, Black concluded, "the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official NOTE. --Footnotes appear at end of article. |