[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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