[Congressional Record Volume 140, Number 8 (Thursday, February 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 3, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                    GOALS 2000: EDUCATE AMERICA ACT

  The Senate resumed consideration of the bill.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts [Mr. Kennedy], 
the manager of the bill.
  Mr. KENNEDY. Mr. President, we have been, over the period of these 
days, trying to give focus and attention to the issue of the Goals 
2000. We went through statements relevant to this subject matter 
yesterday for some period of time. We were involved in an extremely 
important debate and discussion of great significance and importance.
  Obviously, under the rules of the Senate, people can get up and make 
statements and speeches. We have tried on a very important matter to 
cooperate both with the majority leader and the minority leader to 
recognize that there are some matters of importance that are taking 
place that are going to involve Senators this evening and are important 
deliberations.
  We were around for a great deal of time during the course of the 
morning looking for amendments, and would have been glad to have 
statements and speeches. We are now in the 3:30 period. Obviously, 
Senators under these rules can get up and talk, and we have tried.
  I see my friend and colleague from Indiana. We had hoped to be able 
to consider his amendment. Now the Presiding Officer, Senator 
Lieberman, has been over here now for more than 2 hours, 2\1/2\ hours. 
The Senator from New Hampshire has another amendment and has been here 
2\1/2\ hours.
  We would like to request, to the extent that we can, the cooperation 
of the membership so that we might be able to move forward. I have been 
here for some time. So I understand that Members have views and 
positions, and certainly they are entitled to make those 
representations. But I would ask on behalf of the committees that we be 
able to go back and focus on the unfinished business of the Senate, 
which is the extremely important education bill.
  We made that request yesterday. We are making it again today. I would 
certainly hope that we could get back to the considerations of the 
legislation. We are at a very important period of time in the course of 
this debate. We are trying to accommodate other Members.
  But when we find that these matters come up in midafternoon when we 
have had time to consider them in the morning, then we think that the 
young people in this country are entitled to some action too.
  So I would certainly hope that all sides on this now would at least 
give us the opportunity to see what further progress we can make. I 
know the Senator from Missouri is prepared to offer an amendment and to 
speak briefly. Then we are prepared to move ahead to permit the Senate 
to vote on two very important matters.
  So I would urge the cooperation of our colleagues and friends so that 
we can get about the business of education policy here in the Senate.
  Mr. DANFORTH. Mr. President, will the Senator yield?
  Mr. KENNEDY. I would be glad to yield.
  Mr. DANFORTH. Mr. President, my understanding of the parliamentary 
situation is that under the agreement, Senator Helms has an amendment 
pending. It is not subject to amendment. Therefore, the Senate will 
vote on that. Then after that, the Senate will then vote on an 
alternative that would be offered by Senator Kennedy.
  Mr. KENNEDY. The basic agreement is that the Senator from North 
Carolina submitted his amendment. It is not subject to perfection or 
alteration. We had indicated in the consent agreement that he would be 
able to make the presentation, which he has. I imagine if he wants to 
come back, make additional comments, there is no time limitation. But 
at some time--we did not say at what time--another amendment will be 
introduced by Senator Jeffords or the Senator from Missouri and we will 
have a discussion. At the termination of the discussion, there will be 
two back-to-back rollcall votes; the first vote will be on the 
amendment of the Senator from North Carolina, and the second will be on 
the amendment of the Senator from Missouri.
  That is, I believe, the current situation. I think that would be the 
way that we would proceed.
  So after the time that the Senator would introduce an amendment, make 
what comment, then we would move forward to two votes.
  The PRESIDING OFFICER. The Senator from Massachusetts has correctly 
stated the parliamentary situation as the Chair understands it.
  Mr. DANFORTH. Mr. President, I may inquire about the parliamentary 
situation? Is it now in order to send the alternative amendment to the 
desk?
  The PRESIDING OFFICER. The Senator is correct. It is now in order.
  Mr. DANFORTH. All right.


                           Amendment No. 1383

  Mr. DANFORTH. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Missouri [Mr. Danforth], for himself and 
     Mrs. Kassebaum, proposes an amendment numbered 1383.

  The amendment follows:

       At an appropriate place, insert the following:
       It is the sense of the Senate that local educational 
     agencies should encourage a brief period of daily silence for 
     students for the purpose of contemplating their aspirations; 
     for considering what they hope and plan to accomplish that 
     day; for considering how their own actions of that day will 
     effect themselves and others around them, including their 
     schoolmates, friends and families; for drawing strength from 
     whatever personal, moral or religious beliefs or positive 
     values they hold; and for such other introspection and 
     reflection as will help them develop and prepare them for 
     achieving the goals of this bill.

  Mr. DANFORTH. Mr. President, let me just briefly tell the Senate the 
difference between the two amendments that we will be able to select 
between.
  The amendment that has been offered by the Senator from North 
Carolina would be a Federal mandate to the State and local governments 
relating to prayer in school. It would say that local governments and 
local school boards must permit voluntary prayer in school or else they 
lose Federal money.
  This amendment by contrast is not a mandate. It is a statement of 
position by Members of the Senate, a sense-of-the-Senate amendment. But 
it does not mandate how local school districts must act. It does not 
offer money or withhold the money depending on what is done by a local 
school district. It allows local school districts to make their own 
decisions about whether in that school district voluntary prayer should 
be allowed or not.
  It also allows flexibility for those school districts to tailor 
whatever they are doing according to what the law is. Furthermore, it 
does not fall into the trap of the Helms amendment which is the trap 
that is in the very last sentence of the Helms amendment which says, in 
effect, that local school districts cannot have any control over the 
form of prayer in their schools which would mean presumably that any 
student could arise from his seat any time of day and do anything that 
he or she wanted to do in the name of prayer, out loud, in a 
belligerent way, whatever.

  This is, therefore, much less directive. It is not directive. It is 
simply a statement of position by the Senate. What is the statement of 
position? The statement of position is that it is a good thing to have 
a brief period of silence. We do not direct the school boards do it. We 
simply advise that in our opinion it is an appropriate thing to do to 
have a period when students can reflect on their religion. They can 
reflect on their value system. They can reflect on how they want to be 
good citizens of that school or what they want to accomplish during 
that day in school.
  So it is not an effort to try to impose from Washington through the 
granting or withholding of funds what should be done by the local 
school board. Therein is the difference.
  The PRESIDING OFFICER. The Senator from Arkansas [Mr. Bumpers] is 
recognized.
  Mr. BUMPERS. Mr. President, on the amendment of the Senator from 
North Carolina, you will recall in the 1980's we debated a 
constitutional amendment presented to this body by President Reagan, a 
constitutional amendment dealing with voluntary prayer in school.
  There was just one thing that was fatally flawed about that 
amendment. It did not provide for voluntary prayer. It provided for 
mandatory prayer to be written by whoever happened to control the 
school board of any particular school. And to the eternal credit of the 
U.S. Senate it was soundly defeated.
  Some of us who feel strongly about the religious Judeo-Christian 
principles of this Nation went to work and crafted a bill called 
freedom of access. The freedom of access bill, which was essentially 
the product of Senator Hatfield, I believe, and a few others, who had 
voted against the constitutional amendment. Hearings were held on it. 
The Senate passed it, and you know something? The constitutionality of 
it was challenged, and the U.S. Supreme Court in a hearing, the only 
hearing I ever attended in the Supreme Court--I went over to hear that 
case argued--and the Supreme Court said it was constitutional. The law 
says that any school district which allows nonacademic programs or 
functions in their facilities may not deprive any individual or group 
of the right to theological discussions, prayer, whatever they want to 
do of a religious nature as long as it is not teacher led or preacher 
led, and conducted during nonacademic hours.
  The Supreme Court says, ``That's just fine.'' And it is fine. If you 
are going to let the Young Communist League meet in the local school 
cafeteria, you certainly are not going to deprive a group of young 
children who consider themselves affiliated with some religion or 
another the right to meet, pray, discuss, whatever.
  Today as a result of the constitutionality of that bill being upheld, 
there are thousands--thousands--of prayer groups all over America using 
school facilities.
  Mr. President, the Founding Fathers knew exactly what they were doing 
when they crafted our Constitution. They knew there was always going to 
be somebody coming down the pike that wanted to make you dance to their 
tune; march to their drummer. But why would we want to mandate a loss 
of money to a school district without a definition of what is voluntary 
and what is not. We already have voluntary prayer in school--legal, 
authorized by the U.S. Congress and upheld by the Supreme Court.
  Why do we want to threaten people when anybody in any school who is 
denied that right under the Freedom of Access law has a cause of action 
in the Federal courts? And they ought to use it. We have had one action 
in Arkansas in the last 2 years.
  What the Helms amendment does, of course, is hold a great big club 
over the head of every school administrator of the United States, every 
school district in the United States, with a threat of losing all of 
their money if somebody alleges that they want to voluntarily pray, and 
have been prevented from doing so.
  One of the reasons that amendment in 1980 was so soundly defeated is 
because the people of America were scared to death of who was going to 
get control of the local school board, and not just whether it would be 
Jewish, Muslim, or Christian, but also whether it would be Baptists, 
Methodists, Presbyterians, or Catholics. Whoever got control of the 
school board would have some say about the content of the prayer.
  I can tell you, even my fundamentalist friends do not like that. They 
want prayer in school, but they cringe to think that somebody with whom 
they might have a serious religious disagreement would be composing the 
prayers down at the schoolhouse simply because they got control of the 
school board.
  Mr. President, since I came to the Senate, I guess I have voted on 
prayer in school at least 40 times. Everybody knows what these 
amendments are about. They are designed for political embarrassment to 
everybody who votes no, so the next time their opponents can say, he 
voted against voluntary prayer in school.
  I do not mean this to be self-serving, but I was the only Southerner 
who voted against that constitutional amendment. And when I ran the 
next time, sure enough, that is all my opponent wanted to talk about. 
That is all his campaign ads were about.
  I waited one night until there were about 1,000 people in the crowd 
in a pretty good Bible Belt community in my State, and I explained my 
vote. And I am telling you, I had fundamentalists and everyone stomping 
and cheering because the American people know the truth when they hear 
it.
  Harry Truman said, the only time this country ever gets in trouble is 
when there is some liar sitting in the Oval Office.
  Tell them the truth about what that amendment did and once we did 
that, they did not want it.
  So, Mr. President, I am going to vote against the Helms amendment as 
presently written. I certainly will support the amendment of the 
Senator from Missouri, and I applaud his efforts.
  I thank God Almighty for those brave souls who have not jumped under 
their desks every time this issue came up in the U.S. Senate. Thank God 
Almighty for those brave souls who so far have prevented those who 
would destroy religious freedom from doing so under the guise of the 
false flag of providing religious freedom, of mandating prayers--their 
prayers--under the false and deceptive flag of voluntariness.
  I yield the floor.
  Mr. JEFFORDS addressed Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I will be brief. I know that the Senator 
from North Carolina deserves and will have, I hope, an opportunity to 
close debate, or hope to close debate.
  I would like to follow up to some degree the comments of the Senator 
from Arkansas on what the status of the law is and also raise the 
awareness of my colleagues as to what could be the disaster of this 
amendment to a local school district, because I think it is incredibly 
important that we understand exactly what this amendment could do.
  First of all, I point out the wording of the Helms amendment--and I 
will be supporting the Danforth amendment--``No funds made available 
through the Department of Education under this act, or any other act, 
shall be available to any State or local educational agency which,'' 
and it goes on.
  I want to make sure you understand what is at risk here. It is not 
the funds under this act, which are rather small. It is not the funds 
of the acts of those things that go through the Department of 
Education, but it is all Federal funds that go to a local educational 
agency.
  What are those? Well, you have, in addition to what we are dealing 
with today, all the educational acts, like the Elementary and Secondary 
Education Act, all those connected with that and anything else in the 
Department of Education; but also grants from NASA, grants from the 
National Science Foundation, of which there are many in these areas; 
agriculture; the school lunch program; the school breakfast program; 
all moneys that flow through HHS; Medicaid funds; funds of that nature 
which get involved in schools.
  So if you run afoul of this amendment, all those funds--and you ought 
to remember the wording that they shall not be available--shall not be 
available--thus meaning, they are at risk, thus meaning if you violate 
it and you are found in violation, you do not get any of these funds. 
So this is an incredibly difficult amendment to understand.
  Now here we can vote for these amendments and pray that somehow, 
somewhere, some way along the way they will not get into law. But we 
ought to be aware of what will happen if they do get into the law. And 
that is what will happen.
  Second, I think we have to wonder about what the intent of the 
amendment really is. We have spent hours and hours arguing against 
amendments that would try to prevent mandates and the Federal 
involvement in the law in education, all those things.
  I do not disagree with that. I do not think we should allow the 
Federal Government to have any way to dictate to the local educational 
institutions what their programs and the standards, et cetera, ought to 
be.
  But I cannot help but wonder whether this amendment is an attempt to 
really get all Federal funds out of the schools or is just involved 
with voluntary prayer?
  Well, I would like to restate, which I think has already been brought 
to your attention, what the law is now with respect to funds and 
voluntary prayer. The law for years and years in appropriations bills 
has stated this:

       No funds appropriated under this act may be used to prevent 
     the implementation of programs of voluntary prayer and 
     meditation in the public schools.

  Very clear. That is existing law.

         
  So what is the problem? I do not know. But if you read the bill, it 
sounds good until you get to the ``or'' clauses.
  Let me give you the best example, and the Senator from Missouri 
pointed that out very clearly. It sounds very good.

       Neither the United States nor any state nor any local 
     education agency shall require any person to participate in 
     prayer or influence the form or content of any prayer in such 
     public schools.

  Well, you think, it is the last clause. You think it reads pretty 
well: `` * * * or influence the form or content of any prayer in such 
public schools.''
  Now, you have the Constitution out there which has very strict 
provisions which allow or do not allow activities with respect to 
prayer in the schools. But as the Senator from Missouri pointed out, 
suppose somebody in the middle of school desires to get up and loudly 
proclaim a prayer? Well, it is perfectly allowable under the 
Constitution to control your classroom and to say there is an 
appropriate time for those activities, but you cannot do it to disturb 
the classroom. This would place you in violation of the Constitution 
and in violation of this amendment.
  So the school agency is put in the dilemma of having the threat of 
losing all of its Federal funds on the one hand, or perhaps getting a 
lawsuit on the other hand to go to the U.S. Supreme Court on the issue 
of whether or not a person can get up and disrupt a classroom with a 
prayer.
  Obviously, the easiest way to go would be, you would think: Well, do 
not worry about the Education Department; except you lose all your 
funds. So then you are forced into violating the Constitution. And then 
you are forced into going to the Supreme Court to solve the problems.
  I hope we understand that the law right now is pretty clear what can 
be done. This amendment would throw everything into chaos, give the 
Department of Education a nightmare as to how to separate and delineate 
what cannot be done, what can be done, what is within this amendment 
and the Constitution, and what is without.
  So I hope my colleagues will vote for what I think is a very sensible 
substitute by the Senator from Missouri, a man for whom I have immense 
respect. I have worked with him on civil rights laws. He and I were 
attorneys general together back in the late 1960's and 1970's. I just 
know also, as a minister, he is very, very much concerned about the 
ability of our young people to be able to participate in religious 
services and prayers. I just want to make sure my colleagues understand 
what could happen if this amendment passed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. PACKWOOD. Mr. President, I have not decided how I am going to 
vote on the amendments of the Senator from North Carolina or the 
Senator from Missouri or the Senator from Massachusetts. But I want to 
get something clear in my mind before proceeding. I have opposed 
constitutional amendments which would have allowed school boards to 
write prayers or teachers to direct prayers. If you ever want to stop a 
Rotary audience, when somebody asks you about school prayers, just ask 
them who should write it.
  ``The school board?''
  ``Well, no; don't trust the school board.''
  ``The principal?''
  ``It depends whether he's Christian.''
  You say, ``Well, what if he is not? Does the principal get to write 
it?''
  ``Well, no.''
  ``The teacher? Have a different prayer in each room, depending on the 
teacher, and each day you get up and the teacher recites the prayer?''
  No, they do not mean that either. Not even if you say Sally and 
Jimmy, if they do not like it, can go off in the cloakroom. But this is 
what I want to ask the Senator from North Carolina. If I read the 
intent of his amendment, it is to prohibit the distribution of funds to 
these school districts if they prohibit constitutionally permitted 
prayer?
  Mr. HELMS. The Senator is exactly right. And that is all it does.
  Mr. PACKWOOD. It is not trying to extend the Constitution?
  Mr. HELMS. No, sir.
  Mr. PACKWOOD. And those two words, if added, ``constitutionally 
permitted,'' would mean if a school district does not allow a student 
to stand up and do silent prayer or stand up and do a modest oral 
prayer that does not disrupt the class, whatever the Court allows, the 
Senator from North Carolina would allow, and say the school district 
must allow.
  Do I have it correct?
  Mr. HELMS. You do, absolutely.
  Mr. PACKWOOD. I want to go to this issue. I want to understand what 
the Senator is aiming at. Maybe the words ``constitutionally 
permitted'' should be added.
  But it is this issue of the mandates that I find intriguing because 
we really are an Alice-in-Wonderland place. It is interesting to see 
the flip of liberal and conservative positions from time to time. We do 
not shrink at all from mandates to local school districts. We load them 
up one after another. We did it with title IX in the old Grove City 
case, where the Supreme Court made a decision this was discrimination 
against women and girls, and we said we were going to withhold money. 
We had to finally change it statutorily because the Court's decision 
was a statutory, not constitutional, decision. I supported that. I 
supported withholding the funds if they were going to discriminate 
against women and girls. We had a 4-year battle. We could not break a 
filibuster the first time, trying to reverse Grove City. But it was a 
mandate.
  We do it under title VI of the Civil Rights Act. We withhold funds 
for failure to enforce racial discrimination laws; if education 
districts will not enforce them, we will withhold funds. We do it under 
section 504 of the Rehabilitation Act of 1973 for discrimination 
against the disabled. And we do it under title III of the Age 
Discrimination Act, if there is discrimination on the basis of age.
  Interestingly, those are all statutory. They do not rise to the 
dignity of a constitutional prohibition. They are all statutory and we 
all mandate the districts must pay attention to them. If they do not, 
they lose their money. In a couple of cases, they do not lose it all, 
but they lose part of their money.
  So I fail to follow the logic of saying that if we are going to 
prohibit a school district from getting all or some of its money if it 
violates statutory prohibitions on age discrimination or racial 
discrimination or disabilities discrimination, that it is illogical to 
say we will withhold their funds if they violate the Constitution, 
which has a higher dignity than statutes that we may pass in the 
Congress.
  So I find two issues. But I think the one can be separated. I do not 
find the mandate issue a particularly consistent argument with 
everything we have done. And usually in the past--and I have been on 
the liberal side of these--it is the liberals who pass these laws on 
age discrimination or racial discrimination and demand the mandates. It 
is usually the conservatives who are opposed. There is a mix, but that 
is a rough generalization.
  Now, when we come to a mandate to enforce a constitutional right, I 
sense there is going to be a flip of positions. I find that 
interesting.
  But if the amendment of the Senator from North Carolina is nothing 
more than a mandate with the threat of losing funds to the school 
districts, that they must follow the Constitution or they would lose 
their funds, I think most people will support that. My hunch is if this 
said they must follow the first amendment on free speech, it would have 
overwhelming support.
  But, in any event, while I have not decided how I am going to vote, I 
would prefer a lot more to have the words in there: ``constitutionally 
permitted.'' I do not think you can use the argument that this is a 
mandate to defeat this when we do not hesitate, on bill after bill 
after bill in education, let alone everything else, to mandate local 
governments and local education districts to do things that we think 
they ought to be doing, whether or not they do them.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER (Mr. Wellstone). The Senator from Missouri.
  Mr. DANFORTH. Mr. President, I am not sure I understand the point 
that has been made by the Senator from Oregon with respect to this 
mandating that school districts enforce the Constitution. Because there 
is nothing in this that mandates they enforce the Constitution.
  What this does is to mandate the school districts to allow voluntary 
prayer.
  Mr. PACKWOOD. As I understand----
  Mr. DANFORTH. But there is no constitutional right, as I understand 
it right now, in schools, that a period of prayer be set aside, or that 
prayer be allowed even if it is voluntary prayer.
  Certain types of voluntary prayer are not permitted under the 
Constitution. Certain types are permitted in the Constitution. But none 
is required by the Constitution.
  Mr. PACKWOOD. Correct.
  Mr. DANFORTH. What this does is to say that, henceforth, the school 
district's receipt of Federal funds will be determined by whether or 
not the school district will adopt a policy of allowing voluntary 
prayer?
  Mr. PACKWOOD. No, that is not the way I read it. And I do not think 
that is absolutely what the Senator from North Carolina said.
  Mr. HELMS. Absolutely not. The Senator is wrong.
  Mr. PACKWOOD. The words ``constitutionally permitted'' are not in 
this amendment. What the Senator is saying is that school districts 
must allow prayer that is constitutional.
  Mr. HELMS. Right on.
  Mr. DANFORTH. All right. If he is saying that, then that does solve 
part of the problem. He does not say that, but if he were to say that, 
that would solve the odd situation in the amendment, as it now stands, 
which says that even an unconstitutional voluntary prayer, such as one 
that is led by the teacher, even though it is allegedly voluntary, 
would be mandated.
  However, that is not the only problem with this legislation. The 
problem with this legislation is that it says to the school district, 
you can no longer be neutral. It says to the school district that you 
can no longer have a situation in your school district where prayer 
will not take place in your schools. It says that if it is voluntary 
prayer, you must allow that voluntary prayer or you will lose your 
money. So it mandates a change in policy in those schools.
  Mr. PACKWOOD. It does not mandate--forget this amendment. I am not 
sure today if you are constitutionally permitted as a child to say a 
prayer that the school district can pass an ordinance or stop you from 
doing it. That is why I asked about the words ``constitutionally 
permitted.'' I do not think we are compelling the school district to do 
anything. I think we are saying you must follow the existing 
constitutional law.
  Mr. DANFORTH. Then the argument, as I understand it, is therefore the 
amendment does nothing.
  Mr. PACKWOOD. Except it withholds funds. That is rather significant 
to a local school district. At the moment, I suppose we can pass a 
sense-of-the-Senate resolution that says to the local school district, 
``Do not violate the Constitution. If the Constitution allows certain 
types of prayer, you must allow it, period.'' That would be oratory 
language.
  Mr. DANFORTH. Does the Senator believe that the Constitution now says 
that school districts must allow voluntary prayer in their school?
  Mr. PACKWOOD. I am not sure exactly what the Court has said. I 
believe it has said that a child can have a moment of silent prayer. I 
am not sure what it has said about a minute of oral prayer, a child 
doing it himself, so long as it does not disrupt the class, or if 
somebody says grace before meals.
  Mr. DANFORTH. I will point out this amendment, as the amendment is 
written, will clearly permit a child to disrupt a class. The Helms 
amendment says specifically that the school board cannot, and I quote 
``influence the form or content of any prayer in public schools.'' So 
that the form that the prayer takes, namely out loud, namely going on 
for a prolonged period of time, namely conducted in a disruptive 
fashion cannot, under this amendment, be influenced by the school 
board.
  Mr. PACKWOOD. But if you were to add the words ``constitutionally 
permitted'' and the Court has said it is fine to have a moment of 
private, personal prayer or oral prayer but you cannot set yourself 
afire or you cannot roll about the aisles and disturb the other 
children, and the Court says that goes beyond freedom of religion, 
there is nothing here that compels the school district to allow that 
kind of prayer.
  Mr. DANFORTH. But if the Senator will yield, a prayer that is out 
loud is not constitutionally prohibited. A prayer that is out loud is 
clearly permitted under the Constitution, but that does not mean that 
any schoolchild at any time of day during the middle of class or during 
the middle of an exam has an unlimited power today----
  Mr. PACKWOOD. Correct.
  Mr. DANFORTH. To stand up and begin uttering a prayer.
  Mr. PACKWOOD. And the Court can put certain limitations on the 
disturbance of the school----
  Mr. DANFORTH. This says that the school district cannot put those 
limitations on, and if it tries to, it will lose its money.
  Mr. PACKWOOD. No, if you were to add the words ``constitutionally 
permitted,'' the school district can put limitations on 
unconstitutional prayer. They can say you cannot----
  Mr. DANFORTH. The school district clearly can put limits on 
unconstitutional prayer, but prayer is not unconstitutional. There is 
no such thing as an unconstitutional prayer, that I know. The question 
is, are there reasonable limits to prayer that could be imposed by a 
school district? And my answer to that is clearly there have to be or 
else you would have utter chaos in the schools.
  Mr. PACKWOOD. Let me ask my good friend from Missouri a question then 
because this amendment really falls, in my mind, into three categories. 
First, we are going to withhold the funds; second, if you prohibit 
constitutional prayers; and third, the local school board or 
educational agency shall not require form. What if you took off the 
last sentence, shall withhold funds if you prohibit constitutional 
prayer; we have, no, they shall make no order or ordinances to the form 
of the prayer?
  Mr. DANFORTH. You would then be solving a big problem at the end of 
this amendment. That is clear. You would still have the primary problem 
with the amendment; namely, this is the problem of Uncle Sam, we in the 
Senate, making a decision relating to the most fundamental values of a 
local community.
  We are saying that under the circumstance--just as an example--under 
the circumstance in which there is divisiveness in a community--let us 
say this Farrakhan character has just shown up in the community. There 
is an uproar going on, total uproar, on the basis of religion. We are 
saying that school district under those circumstances cannot say that 
we believe this is disruptive and we are not going to permit it.
  Mr. PACKWOOD. I am not saying that any more than what Justice Holmes 
said about shouting fire in a crowded theater. Freedom of speech does 
not extend that far. I am sure freedom of religion does not extend as 
far as if you are faced with a Louis Farrkhan-near riot the school 
system cannot shut the schools. You go way beyond prayer and you are 
into riot.
  Mr. DANFORTH. I would be happy to stop short of riot, and I will 
posit another situation short of a riot.
  Let us suppose a community is 90 percent Christian and 10-percent 
Jewish. And let us suppose that the Christian kids are very 
enthusiastic, very much into their religion, very much into forming 
prayer groups, very much into leading prayers and offering prayers and 
seeking opportunities to have prayers.
  Let us say that the Jewish kids are humiliated by this; that they 
feel they are being excluded and left out and that the parents of the 
Jewish kids go to the school board and say, ``My children are coming 
home in tears every night because of what they believe is kind of an 
in-group mentality of the school,'' and the school says we believe as a 
matter of educational policy that this is something that is disruptive 
and we would like to exercise our local responsibility and say we are 
going to have a little oasis in this school where people are not going 
to be divided on religious lines.
  I believe that the school district should be able to do that on their 
own without Uncle Sam coming in and saying, ``I am sorry, we're going 
to mandate that you do this or you lose your Federal educational 
money.''
  Mr. PACKWOOD. I would be inclined to, given the circumstance you 
mentioned, probably agree with you in that fact situation. If you had a 
zealous 90 percent Christian district with proselytizing kids, 
harassing their 10 percent, the 10 percent Jewish, harassing 10 percent 
Jewish classmates, my hunch would be the Court might say that you do 
not have a constitutional right to do that. But I am willing to leave 
it to the Court to determine the constitutionality.
  My question is this: Once the Court has determined the 
constitutionality, the 90 percent cannot harass the 10 percent Jewish 
fellow classmates, but the 90 percent can pray and the 10-percent can 
pray, then the school district cannot say to the 90 percent and the 10 
percent, ``No you can't.''
  Mr. DANFORTH. Why not leave it to the school districts to make the 
decision without us making the decision? On something that is this 
latent with community values, on something that is this volatile, on 
something that is this community-sensitive, why should either the U.S. 
Senate or, let us say, the Federal district court be the deciding 
factor?
  Why are not school districts in the business of trying to effectuate 
community values? We are not in this amendment dealing with the 
Constitution. If the Constitution prohibits the prayers, this amendment 
is not going to help it. What this does is to say that within the 
present constitutional boundaries, whatever they are, within those 
present constitutional boundaries, the school board is no longer going 
to be the decisionmaking body for determining how we are going to 
operate the school.
  Mr. PACKWOOD. It is interesting. The Senator says should we not leave 
it to the local school board. A long time ago, we said, when it comes 
to freedom of religion, we are not going to allow the local school 
board to be the last word. We are not going to allow the school board 
in my county of Multnomah, OR, we are not going to allow the school 
board in Jefferson City to say this is what freedom of religion means 
in Jefferson City. The Court has said there is a national standard, and 
local school boards cannot violate that.
  Now, if you have a national standard that says a child can pray, you 
cannot let the school board violate that. And if the school board does 
violate that, if I understand the Senator's amendment, he says we are 
going to take away your money. But heavens, we take away their money 
all the time, or threaten to if they do not adhere to a variety of 
other statutory obligations we pour on them.
  Mr. DANFORTH. Well, the Senator is correct in the fact that there are 
some people who are really enthusiastic about we in Washington having 
just wonderful wisdom to tell people what to do. The idea that the 
power of the purse can be used by Washington to direct people at the 
local level as to how to function in their lives is very, very 
invigorating; it just sweeps us into the enthusiasm of the thing.
  But I just do not understand why we should say that a school district 
cannot take the position that it wants to just keep out of the 
religious situation and let that be a matter for the families, for the 
churches, for the homes.
  Mr. PACKWOOD. Apparently, the Court has said they cannot totally opt 
out of the religious situation. That is unconstitutional. They cannot 
say a child cannot pray. You cannot say you cannot meet after school on 
an equal basis, a religious or an athletic basis. The school cannot do 
that. It is unconstitutional.
  Mr. DANFORTH. A school can certainly say we are not going to have 
prayer in classrooms during school right now, as of now, until we pass 
this.
  Mr. PACKWOOD. They can say that you cannot have compulsory prayer, 
you cannot have school-led prayer, you cannot have teacher-led prayer. 
I do not know whether or not the Court has said, if school starts at 
8:15 in the morning, that at 9:30 Susie or Jimmy cannot say a silent 
prayer to themselves right in the middle of class. Maybe the Court said 
that; maybe it has not. But if the Court has said that, the local 
school board would not have the constitutional right to stop it.
  Mr. DANFORTH. As I understand it, I do not believe that the Supreme 
Court has ruled out the possibility of silent prayer. This is not 
limited to silent prayer.
  Mr. PACKWOOD. It is limited to constitutional prayer.
  Mr. DANFORTH. This is not limited to silent prayer
  Mr. PACKWOOD. It is limited to constitutional prayer, silent or 
otherwise.
  Mr. DANFORTH. There is no such thing as unconstitutional prayer.
  Mr. PACKWOOD. Yes, there is.
  Mr. DANFORTH. Where is there any such thing as unconstitutional 
prayer?
  Mr. PACKWOOD. When the school district attempts to require the 
student to say a prayer, that is unconstitutional.
  Mr. DANFORTH. It is unconstitutional to require somebody to say a 
prayer. But anybody who wants to utter a prayer has a constitutional 
right to utter that prayer. I am not talking about officially mandated 
prayer. Nobody is discussing that.
  Mr. PACKWOOD. And if the school district attempts to take away that 
right, should we sanction them by withholding funds?
  Mr. DANFORTH. There is no constitutional right that I know of to 
stand up in the middle of the classroom and begin praying. There is no 
constitutional right during school hours that I know to organize prayer 
groups.
  Mr. PACKWOOD. Then let me ask----
  Mr. DANFORTH. Maybe the Supreme Court can decide such a thing.
  Mr. PACKWOOD. Let me ask the Senator from North Carolina then, if 
there is no constitutional right, as the Senator from Missouri said, I 
assume the Senator's amendment could not stop any money, if there was 
no constitutional right.
  Mr. HELMS. We are not into that. Throughout the legislative history 
of my speech, I referred to constitutionally permitted prayer. Now, if 
anybody doubts that, we will write it into it.
  I ask unanimous consent, Mr. President, that those two words be added 
so that there will be no further argument about it.
  The PRESIDING OFFICER. Is there objection?
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll to ascertain the 
presence of a quorum.
  The legislative clerk proceeded to call the roll.
  Mr. HELMS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    amendment no. 1382, as modified

  Mr. HELMS. Mr. President, I believe we have agreed on two 
modifications which were strongly referred to in my legislative 
history, my speech, on my amendment. Mr. President, will the clerk read 
the proposed amendment as modified.
  The PRESIDING OFFICER. The clerk will report the amendment, as 
modified.
  The legislative clerk read as follows:

       At the appropriate place, add the following:
       ``No funds made available through the Department of 
     Education under this Act, or any other Act, shall be 
     available to any state or local educational agency which has 
     a policy of denying or which effectively prevents 
     participation in, constitutionally protected prayer in public 
     schools by individuals on a voluntary basis. Neither the 
     United States nor any state nor any local educational agency 
     shall require any person to participate in prayer or 
     influence the form or content of any constitutionally 
     protected prayer in such public schools.''.

  The PRESIDING OFFICER. Is there objection to the modified amendment? 
Without objection, the amendment is so modified.
  The amendment (No. 1382) as modified, is as follows:

       At the appropriate place, add the following:
       ``No funds made available through the Department of 
     Education under this Act, or any other Act, shall be 
     available to any state or local educational agency which has 
     a policy of denying or which effectively prevents 
     participation in, constitutionally protected prayer in public 
     schools by individuals on a voluntary basis. Neither the 
     United States nor any state nor any local educational agency 
     shall require any person to participate in prayer or 
     influence the form or content of any constitutionally 
     protected prayer in such public schools.''.

  Mr. HELMS. I hesitate to make any remarks that I was going to make 
because the two modifications that have been agreed to are precisely 
what I have been emphasizing all afternoon anyhow, except I used the 
words ``constitutionally permitted'' and the modification says 
``constitutionally protected.''
  So of course I am grateful to Senator Packwood for taking part in 
this discussion. He made an enormous contribution.
  Let me just say this: as now modified, my amendment referred only to 
``constitutionally protected'' prayer and previously it was 
``constitutionally permitted.'' I do not know whether that is splitting 
hairs or not. But if it suits Senators, it certainly suits me.
  In any case, whether it is protected or permitted it does not force 
school districts to allow school prayer which the Supreme Court has 
determined to be prohibited.
  My amendment does not prohibit school districts from establishing 
time and place restrictions on prayer. It does not mandate school 
prayer or mandate participation in school prayer, or require schools to 
establish particular prayers.
  What this amendment does in short is to assure students their right 
to constitutionally protected voluntary prayer by providing that school 
districts which prohibit constitutionally permitted prayer and so 
forth. The rest of it is obvious.
  Mr. President, the Supreme Court has never ruled directly on the 
constitutionality of student-initiated voluntary school prayer. But 
Supreme Court precedent indicates that students have a right to engage 
in religious activities in the schools if those activities do not 
materially disrupt other activities in the school.
  In 1981, in Widmar v. Vincent, 454 U.S. 263, the Supreme Court held 
that religious speech is protected under both the free speech and the 
free exercise clause of the first amendment.
  In 1969, in Tinker v. Des Moines School District, 393 U.S. 503, the 
Supreme Court held that students exercising their free speech rights in 
the school cannot materially disrupt the school day or substantially 
infringe upon the rights of others in the school.
  In 1990, in Mergens v. Westside Community School District, 496 U.S. 
226, the Supreme Court upheld the Federal Equal Access Act for 
religious activities in the schools against a challenge against the act 
by the school which argued that student-initiated religious activities 
on campus violated the establishment clause in the Constitution. The 
Supreme Court thus rejected the argument that any student religious 
activities on school campuses violated the Constitution.
  Those cases are still good law, and taken together, they should make 
it clear that students have a right to engage in religious activities 
in the school if those activities do not materially disrupt other 
activities in the school day or infringe upon the rights of others in 
the schools.
  There is nothing in the language of the Helms amendment contrary to 
those Supreme Court holdings and I fully expect that the amendment, if 
enacted, will be interpreted and upheld in a manner consistent with 
these Supreme Court precedents concerning student-initiated religious 
activities in the schools.
  The yeas and nays have been ordered on the amendment, have they not, 
Mr. President?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HELMS. I suggest we vote so we can move along.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. KENNEDY. If I could just inquire of the leadership, and have a 
brief quorum call, I am prepared to vote. I want to vote.
  Mr. HELMS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I ask unanimous consent I be allowed to 
proceed as if in morning business for no longer than 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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