[Congressional Record Volume 140, Number 100 (Wednesday, July 27, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: July 27, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
UNANIMOUS-CONSENT AGREEMENT
Mr. LEVIN. Mr. President, I ask unanimous consent that the Senate
vote on Senator Helms' amendment No. 2416 at 6:20 today; that upon the
disposition of that amendment, the Senate vote on Senator Kassebaum's
amendment No. 2415, as amended, if amended, with the preceding all
occurring without any intervening action or debate, and with the time
between then and now equally divided between Senator Kassebaum and
Senator Helms or their designees.
The PRESIDING OFFICER. Is there objection?
Without objection, so ordered.
Mr. LEVIN. Mr. President, will the Senator from Kansas yield me 6
minutes?
Mrs. KASSEBAUM. I am happy to yield whatever amount of time the
Senator needs.
Mr. LEVIN. I thank the Senator from Kansas. These two amendments that
we are going to be voting on are inconsistent. We should not delude
ourselves about that fact. The Senator from Kansas has introduced an
amendment which has two very distinct advantages over the Helms
amendment. First of all, the Helms amendment wades into the thicket of
constitutional law relative to prayer and puts at risk a decision of a
school board or school administrator, if they, by chance, make the
wrong decision relative to one side of the issue.
This is a very complicated issue--school prayer. If it were not,
there would not be so many cases going to the Supreme Court. The fact
that it is complicated is proven by the number of cases that are in
court on this issue.
But the amendment of the Senator from North Carolina says if you make
a mistake relative to your judgment on this, get legal advice which may
be found by a court to be wrong, and you are going to lose all your
Federal funding. That threat to school boards and school administrators
is a major threat; it is a threat which no school board or
administrator ought to face, and it is a threat which is avoided by the
Kassebaum amendment, which says that only if you violate a court order
relative to prayer in public school will you then lose your public
funds. If you violate a court order with respect to prayer in school,
then you are going to lose your funds. But we are not going to put you
at peril if you make a mistake in judgment as to whether or not a
prayer is permitted or not permitted. We are not going to put your
whole funding at risk if you make that kind of an honest mistake.
The Helms amendment will punish school boards and administrators for
honest mistakes in an area which is complicated. Again, if it were not
so darn complicated, we would not have hundreds of cases going up to
the court as to whether something is permitted or not. So we should
avoid this threat, this very unfair threat to school administrators
which the Helms amendment creates. That is one advantage of the
Kassebaum amendment. The remedy of loss of funds follows the violation
of a court order and it does not follow an honest mistake in this area.
There is a second very important advantage to the Kassebaum
amendment. The Kassebaum amendment protects the rights of
schoolchildren who want to pray and those who do not with the same
remedy. The Kassebaum amendment takes into consideration the fact that
there are children in this country who want to pray, who have a
constitutional right as defined by a court under certain circumstances
to engage in voluntary prayer. It protects those students to the same
extent it protects students on the other side of the issue who want to
be protected from a Government-imposed prayer.
There are constitutional rights in both groups of children, and we
should defend those constitutional rights to the same extent and not
single out one group for protection, leaving the other group without
protection.
The Helms amendment applies the remedy of loss of Federal funding
only for one group. It only uses that threat, which is really a nuclear
weapon for school boards, on behalf of only one group's constitutional
rights and does not use it to protect the other group's constitutional
rights.
We should protect the constitutional rights of all children--all
children--and there are children on both sides, or all sides of this
issue because there are probably more than two sides that have
constitutional rights.
I want to just read the language of the Helms amendment because it is
so clear here what is being done. The Helms amendment says:
* * * no funds made available * * * 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--
And here are the key words:
* * * constitutionally protected prayer in public schools by
individuals on a voluntary basis.
And then it goes on to say something very different about the other
side of the coin, the constitutional rights of the other children, and
here is what it says about those:
Neither the United States nor any State nor any local
educational agency--
According to the Helms amendment.
shall require any person to participate in prayer or
influence the form or contents of any constitutionally
protected prayer in such public schools.
But what happens if they do? That is the silence of the Helms
amendment. It does not provide the remedy of loss of funding if the
second half of that amendment is violated. It is only the first half
which results in a loss of funding.
If the right to participate in a constitutionally protected prayer is
violated, the loss of funding follows, but if someone is required to
participate in prayer, nothing follows. There is no remedy here for
requiring someone to participate in prayer which violates their
constitutional rights. There is silence. It just simply says do not do
it. But what it does not say, what it leaves out is the same remedy to
protect people from those violations as it provides for people who have
had their constitutionally protected right to pray violated. And that
is the second problem with the Helms amendment.
It is that it gives protection to one group with this remedy but does
not give protection to the other group that has constitutional rights,
the right not to be forced to participate in prayer, the right to be
free from Government influence of the form or content of prayer. That
group has no remedy in terms of the loss of Federal funds in this
amendment. This amendment does not give that group that also has
constitutional rights this same remedy. It is only the first group that
is given this remedy.
The Kassebaum amendment, on the other hand, protects both groups with
the same remedy. The Kassebaum amendment protects the rights of
students with respect to prayer in public schools which covers students
who wish to pray voluntarily, as well as students who want to be free
from a mandated Government-imposed prayer. Both groups are protected by
the Kassebaum amendment with a remedy which does not put the school
unfairly at risk; whereas the Helms amendment protects only one group
and leaves the school boards and administrators in great peril because,
if they make an honest mistake in judgment in this complicated area
with respect to the one group whose rights are protected by this
remedy, then they lose their Federal funding.
So on both counts, the Kassebaum amendment protects the
constitutional rights of children who want to engage in voluntary
prayer as well as those who want to be free from a Government-imposed
prayer--and they both have rights. Make no mistake about it. Under
court decisions, there are rights for both groups of children. The
Kassebaum amendment protects the rights of both groups of children and
avoids the harsh and unfair peril that the Helms amendment would put
school administrators and teachers in, that if they make an honest
mistake, they will lose Federal funding.
I hope that we will adopt the Kassebaum amendment, after rejecting
the Helms amendment. They are inconsistent. They are very different.
And, again, for the reasons I have indicated, I think the Kassebaum
amendment is far superior because it protects the rights of all
children with a reasonable remedy instead of just protecting the rights
of some children with an unfair and harsh remedy.
I yield the floor.
The PRESIDING OFFICER (Mr. Conrad). Who yields time?
Mrs. KASSEBAUM. Mr. President, I yield 3 minutes to the Senator from
Minnesota.
The PRESIDING OFFICER. The Senator has 1 minute remaining under her
control.
Mr. WELLSTONE. Then I yield back to the Senator from Kansas if she
yielded me time.
The PRESIDING OFFICER. The Senator from Kansas.
Mrs. KASSEBAUM. Mr. President, I do not need to speak. I do not know
who else wishes to speak at this time.
Mr. WELLSTONE. I will take the 1 minute.
Mr. BUMPERS. Mr. President, if the Senator from Kansas will yield, I
had hoped to speak for 3 or 4 minutes, but it is not of Earth-shaking
importance to me.
Mr. WELLSTONE. Mr. President, if the Senator from Kansas will yield 1
minute, I defer to the Senator from Arkansas that time.
Mrs. KASSEBAUM. Mr. President, then I will yield 1 minute to the
Senator from Arkansas.
The PRESIDING OFFICER. The Senator has 5 seconds remaining.
Mr. HELMS. Mr. President, if the Senator will yield, I would like to
yield 5 minutes to the Senator from my time if he would be interested
in having it.
Mr. BUMPERS. That is most magnanimous of the Senator from North
Carolina. I am sure the Senator knows I do not support his amendment.
Mr. HELMS. That suits me fine. Everyone has to be someplace.
Mr. BUMPERS. The Senator is kind. It may get him some votes, for that
matter.
The PRESIDING OFFICER. The Senator from Arkansas is recognized for 5
minutes.
Mr. BUMPERS. Mr. President, last year, I supported the Helms
amendment. I do not remember the words ``constitutionally protected
prayer'' being in that amendment. I believe that was a second-degree
amendment by Senator Kennedy, which made it considerably better.
But a lot of people jumped under their desks, as politicians always
do when prayer comes up in this body, and said, ``Well, I don't want to
get involved. Senator Kennedy will drop this when it goes to conference
anyway, and no damage will be done.''
But I am not going to do that anymore.
I was the only southern Senator in the U.S. Senate to vote against
President Reagan's constitutional proposal back in, I believe, 1984 to
establish so-called voluntary prayer in school. The problem was that it
was not voluntary.
In that very same year, I was up for reelection. That vote was not
the most politically propitious thing I ever did. My opponent made much
of the fact that I was the only southern Senator to vote against that
constitutional amendment.
But on one happy occasion when there were about 1,000 people in the
audience and my opponent tried to use that vote against me, I pointed
out to the audience what that amendment did. I said: ``If you believe
that the school board in your local community ought to be allowed not
to compose, but to adopt prayers composed by others and send them to
the schoolhouse for your children to recite, you vote for my opponent,
but I will be lying prostrate on the Senate floor before I vote for an
amendment to the Constitution of the United States, which has served us
so well for 205 years, that would allow a school board to take prayers
from Jerry Falwell or whomever and say, These are the prayers our
children will recite at 10 a.m. and 2 p.m. every day.
Now, I will tell you, it was a pretty conservative audience, but they
were stomping and cheering by the time I finished, because they
understood for the first time what that amendment did.
All the American people want is somebody to talk sense to them. A
very powerful and emotional thing, prayer in school.
Right after we defeated that amendment, several of us went to work
here to adopt what we called ``Equal Access.'' That is essentially what
we are talking about here. We said school districts which allow other
extracurricular activities and organizations may not deprive any
voluntary group of students who want to pray, have devotions,
theological discussions, or whatever of that right.
I went over to the Supreme Court to hear the constitutionality of
that bill argued. I had never been there to hear an argument before.
The Supreme Court said that it was constitutional. They said, if people
want to voluntarily assemble in school for prayer, or whatever, the
school board may not deny them that right if they accord the same right
to other extracurricular organizations. And that is the law of the land
today, and prayer takes place in thousands of schools across America
every day.
Both of these amendments refer to constitutionally protected prayer.
The Senator from Kansas and the Senator from North Carolina both say
you cannot deny students the right to constitutionally protected
prayer.
But then, unhappily, the Senator from North Carolina goes on to say:
But we will deprive you of another constitutional right. We will take
your money away from you without you ever getting a trial and a legal
determination as to whether prayer is constitutionally protected or
not.
I served on the school board in my community for 12 long years. It
was a lot tougher job than being a U.S. Senator. I ran for Governor to
get off the school board. We put up with this kind of thing constantly.
And I can tell you that there are a lot of school boards in this
country that would violate the Constitution on this issue. Most of them
are honest, good people who want better schools. But there are some who
would maybe innocently trample on the rights of people who do not want
to have to pray or listen to a prayer that violates their faith.
Under the Helms amendment, that school board could also say, ``No,
you can't pray because this is not constitutionally protected,'' and
they would lose their money without a trial. Nobody here believes that
that is a fair method of handling this.
The PRESIDING OFFICER. The Senator's time has expired.
Who yields time?
The Senator from North Carolina controls all remaining time.
Mr. HELMS. What is the time situation on both sides?
The PRESIDING OFFICER. The Senator has 6 minutes and 36 seconds
remaining.
Mr. HELMS. I thank the Chair.
Has the time for the Senator from Kansas expired?
The PRESIDING OFFICER. The Senator is correct.
Mr. HELMS. I thank the Chair.
Mr. President, how do I respond to a nice guy like Dale Bumpers? He
is so wrong in what he said, but that is all right. I think 80 percent
of the American people, and certainly those who are watching on C-SPAN,
will know that he is not correct. Nor was Senator Danforth, when he
intoned that my amendment would be so dangerous. But I shall not be
critical of anybody who has criticized the amendment. That is their
right.
I will ask unanimous consent, Mr. President, that a list of 12
instances where, under the present system, the rights of children have
been violated because they wished to participate in a voluntary prayer
but were forbidden to do so.
In Prestonberg, KY, a sixth grade student was denied the right to
pray with friends before school.
In Champagne, IL--I call to the attention of my friend, Paul Simon--
Eileen Unander was denied the right to participate in ``See You at the
Pole,'' which is a coordinated, nationwide student event where they
gather to pray at their school flagpoles in the morning before school
begins.
In Colorado, Becky Renshaw has been told not to mention the word
``Jesus'' in school.
What happened to her rights, Mr. President?
Nathan Lewis, of Hatfield, PA--I wish Senator Specter were here--was
selected to speak at his graduation because he was such a stellar
student, but he was told that he could not pray during his speech even
if he wanted to.
And then there is James Amyx, of Broadhead, KY. He was denied the
right to plan a prayer for his graduation, and has been further
threatened with denial of the right to pray with other students before
school if he pursues the graduation issue further.
Now, I am going to ask unanimous consent in just a moment that this
entire list be printed in the Record at this time.
But what I am saying, Mr. President, is that we are putting the shoe
on the other foot with this amendment. Right now, the students are
denied their rights. Hereafter, the administrator or the superintendent
or the principal or the school board will have to justify their actions
to deprive students of their right of voluntary prayer.
Now, I want to know, what is wrong with the shoe being on the other
foot a little bit? For years and years and years, since 1962, there has
been such a muddled situation in our schools about what is lawful and
what is not concerning prayer--and the ACLU has exploited the
situation.
I know that Senator Bumpers went over to the Supreme Court, because
he said he did. And he is like George Washington--he never told a lie.
I am sure he found out what he said he found out.
But the fact remains that young people, children all over the United
States, have been deprived of their right to voluntary prayer under the
present system.
So what I am saying is let us put the shoe on the other foot and let
the administrators justify their position, instead of the students
being kicked around as they have been.
Mr. President, I ask unanimous consent that this list be printed in
the Record.
There being no objection, the list was ordered to be printed in the
Record, as follows:
1. J.J. Music (Prestonberg, KY)--Sixth grade student denied
the right to pray with friends before school.
2. Eileen Unander (Champagne, IL)--denied right to
participate in See You at the Pole type activity.
3. Becky Renshaw (Kremmling, CO)--has been told not to
mention the word ``Jesus'' in school.
4. Nathan Lewis (Hatfield, PA)--selected to speak at
graduation, but told he cannot pray during his speech.
5. James Amyx (Broadhead, KY)--student has been denied
right to plan a prayer at graduation, and has been further
threatened with denial of right to pray with other students
before school if he pursues the graduation issue further.
6. Adam Grecco (Derby, CT)--student denied right to speak
to another student about God at school.
7. Bethany Null (Panama City, FL)--special education
student told she can not pray over her lunch. Client moved
and lost interest in pursuing the matter. File closed.
8. Linda Williams (Tayneville, KY)--valedictorian concerned
about censorship of her speech which will include a prayer.
9. Darren Warren (San Diego, CA)--Denied right to
participate in See You at the Pole. After receiving our
information, however, school chose to permit the activity.
10. Matthew Moen (Smithtown, NY)--Originally denied right
to participate in See You at the Pole. The matter was
subsequently resolved.
11. Harris V. Joint School District (9th Cir.)--students
plan entire graduation ceremony. All decisions are in the
hands of the students, including the decision to have a
ceremony. In this context, some students have chosen to
include student-initiated prayers. This action was
challenged. The trial court decided that the practice is
constitutional. The case is currently on appeal. The ACLJ
file amicus briefs at the trial court level and with the 9th
Circuit.
12. John Walden (St. Petersburg, FL)--student denied right
to participate in See You at the Pole. Litigation was avoided
when school agreed not to interfere with the activity at the
last minute.
Mr. HELMS. Mr. President, the arguments against my amendment fail the
test of reasonableness. Interestingly enough, the Supreme Court has
never ruled directly on the constitutionality of student-initiated
voluntary school prayer. But Supreme Court precedent holds 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 the 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, make it clear
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 day or infringe upon the rights of others in the schools.
I do not find anything in the language of the pending amendment
contrary to those Supreme Court holdings and I fully expect that the
amendment, if enacted, would be interpreted and upheld in a manner
consistent with these Supreme Court precedents concerning student-
initiated religious activities in the schools.
Mr. President, I will ask unanimous consent in a moment that two
legal opinions on the implications of the Helms-Lott amendment be
printed in the Record. The first opinion was written by David M.
Ackerman of the American Law Division of the Congressional Research
Service and is dated February 22, 1994. The second legal opinion was
drafted by James Matthew Henderson, Sr., the senior litigation counsel
for the American Center for Law and Justice. I ask unanimous consent
that both opinions be printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit).
Mr. HELMS. Mr. President, Mr. Ackerman provided the followed legal
analysis in his opinion:
[W]hile the Court has been clear in holding government to
be barred by the establishment clause from sponsoring or
promoting prayer in the public schools, it has had less
occasion to address the converse issue of what prayer
activities must be allowed in the public school, i.e., what
prayer activities might be considered constitutionally
protected. In general the Court has affirmed that students in
public schools do not ``shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate''* *
* One can surmise, for instance, that it would violate both
the free speech and free exercise clauses of the First
Amendment for a [school] to forbid a student from praying
silently during the school day or, perhaps, even from praying
aloud, at least so long as the prayer activity was not
disruptive of the school environment and did not connote
school endorsement* * *.
Some degree of uncertainty about what is constitutionally
protected also attends the issue of commencement prayer * *
*. The U.S. Court of Appeals for the Fifth Circuit, as well
as a Federal district court in Idaho, differentiated student-
initiated and student delivered prayer at a public secondary
school's commencement ceremony and held that kind of
commencement prayer to be constitutional. The Supreme Court
chose not to review the Fifth Circuit's decision* * *. Thus,
student-initiated prayer at commencement ceremonies might for
now be considered to be constitutionally protected in the* *
* Fifth Circuit and in Idaho* * *.
Would any of the [school prayer] amendments violate the
Constitution? None of the amendments appear to be
unconstitutional* * *. With respect to the cutoff of funds in
the Helms-Lott amendment, it suffices to note that Congress
has broad power to impose conditions on the receipt of
Federal funds.
Mr. President, Mr. Henderson stated in his legal opinion that:
When public school officials interfere with voluntary,
student-initiated prayer, such actions usually result from
ignorance; that is, administrators assume that such student
religious speech threatens the ``wall of separation between
church and state.'' Because the Establishment Clause is a
restraint on governmental establishments, not student
religious exercises, such school officials act out of an
erroneous and fundamental misconception.
Mr. President, it is obvious that school administrators are not the
only ones who are ignorant of the constitutionally of voluntary
student-initiated prayer in the schools. I suggest Senators read both
of these opinions in their entirety.
Exhibit 1
Congressional Research Service,
Washington, DC, February 22, 1994.
AMERICAN LAW DIVISION MEMORANDUM
Subject: Senate amendments to S. 1150 relating to school
prayer.
Author: David M. Ackerman.
During debate in early February on S. 1150, the ``Goals
2000: Educate America Act,'' the Senate adopted three
amendments relating to school prayer. This memorandum
provides a brief analysis of their legal and constitutional
implications.
text of the amendments
On February 3, 1994, the Senate adopted an amendment
sponsored by Senators Helms and Lott to S. 1150, the ``Goals
2000: Educate America Act.''\1\ The amendment, which was
approved by a vote of 75-22, provides as follows:
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Footnotes at end of article.
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``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 school.''
The words ``constitutionally protected'' were not included
in the amendment as first propounded but were added by
unanimous consent after an extended colloquy between Senators
Helms, Packwood, and Danforth.\2\
On February 4 and 8, 1994, respectively, the Senate adopted
two more amendments generally relating to the issue of school
prayer--a sense of the Senate amendment sponsored by Senators
Danforth, Chafee, and Kassebaum and an amendment by Senator
Levin. The sense of the Senate amendment, which was adopted
by a vote of 78-8,\3\ provides as follows:
``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 (sic) 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.''
Finally, the Levin amendment, which was adopted by voice
vote,\4\ provides as follows:
``Notwithstanding any other provision of this Act, no funds
made available through the Department of Education under this
Act, or any other Act, shall be denied to any State or local
educational agency because it has adopted a constitutional
policy relative to prayer in public schools.''
legal effect of the amendments
While the amendment concerning a brief period of daily
silence is, as a statement of the sense of the Senate, purely
hortatory, both the Helms-Lott and the Levin amendments would
have substantive legal effect. The Helms-Lott amendment would
bar the Department of Education from making funds available
to any State educational agency (SEA) or local educational
agency (LEA) that had ``a policy of denying, or which
effectively prevents participation in, constitutionally
protected prayer in public schools by individuals on a
voluntary basis.'' The Levin amendment, conversely, would
prohibit the Department from denying funds to any SEA or LEA
which had ``a constitutional policy relative to prayer in
public school.'' It is not clear that that prohibition
accomplishes anything that would not otherwise be the case,
but the prohibition, nonetheless, would be a binding legal
mandate.\5\
The amendments raise at least five issues relating to their
legal effect. First, are the amendments compatible, or
contradictory? Second, would the Helms-Lott amendment cut off
all Federal funds flowing to SEAs and LEAs that violate its
prescription, or just funding provided through the Department
of Education? Third, what does the phrase ``constitutionally
protected prayer in public schools by individuals on a
voluntary basis'' in the Helms-Lott amendment mean? Fourth,
what does the counterpart phrase in the Levin amendment--``a
constitutional policy relative to prayer in public school''--
mean? Fifth, would any of the amendments violate the
Constitution?
(1) Are the amendments compatible, or contradictory? The
amendments appear to be compatible. The Helms-Lott amendment
would require that Federal education funds be cut off under
certain circumstances, while the Levin amendment would
prohibit the cutoff of Federal education funds under certain
circumstances. But under both the Helms-Lott and Levin
amendments an SEA or LEA that had a constitutional policy
relative to prayer in the public schools would be eligible
for Federal education funds. Only in the circumstance that an
SEA or LEA prevented participation in constitutionally
protected prayer, i.e., had an unconstitutional policy
relative to prayer in the public schools, would the Helms-
Lott amendment require that funds be cut off. The Levin
amendment would not proscribe that cutoff. The Danforth
amendment, as a statement of the sense of the Senate
regarding a brief period of silence in the public schools,
is, as previously noted, purely hortatory. But because the
policy it recommends is arguably constitutional, it, too,
appears to be compatible with the Helms-Lott and Levin
amendments.
(2) Would the Helms-Lott amendment cut off all Federal
funds flowing to SEAs and LEAs that violate its prescription,
or just funding provided through the Department of Education?
This issue arose during debate on the Helms-Lott amendment
but does not appear to have been clearly resolved. The
language of the Helms-Lott amendment states ``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. . . .'' Sen. Jeffords, an opponent of the
amendment, twice asserted during debate that this language
meant that the cutoff of funds under the amendment would
apply not only to funds under S. 1150 and not only to other
funds that go through the Department of Education but also to
all other Federal funds going to SEAs and LEAs, such as
school lunch and breakfast monies from the Department of
Agriculture, National Science Foundation grants, NASA grants,
and Medicaid funds through the Department of Health and Human
Services.\6\ No rebuttal of this allegation was made by
proponents of the amendment. Sen. Helms did introduce a legal
memorandum from the American Center for Law and Justice
several days later which described the funding cutoff of his
amendment as applying to ``funding under the Goals
legislation, and funding under any other act, which is
provided through the Department of Education. . . .''\7\ But
early in the debate he had stated that under his amendment a
school district could ``lose its Federal funding.''\8\ the
same language appears in the Levin amendment.
The grammatical structure of the language would seem to
intend that the phrase ``through the Department of
Education'' applies not only to ``under this Act'' but also
to ``, or any other Act,''. But any uncertainty in this
regard would be eliminated if the commas were eliminated and
the word ``Act'' were used but once: ``No funds made
available through the Department of Education under this or
any other Act. . . .''
(3) What does the phrase ``constitutionally protected
prayer in public schools by individuals on a voluntary
basis'' in the Helms-Lott amendment mean? This phrase states
the prescriptive standard of the Helms-Lott amendment,
interference with which would cause a cutoff of Federal
funds. The meaning of that phrase, thus, is critically
important.
The supreme Court has held in a number of decisions that
government sponsorship of devotional activities in the public
schools violates the establishment of religion clause of the
First Amendment. With respect to prayer in the public
schools, it has held the constitutional prohibition of
government sponsorship and promotion to apply (1) regardless
of whether the prayer is composed by the State,\9\ is taken
from religious literature,\10\ or is composed by a teacher or
student\11\; (2) regardless of whether students can be
excused from participating\12\; and (3) to both regular
devotional activities during the school day and to prayers at
such singular events as graduation exercises.\13\ The
proscription has even been held to extend to moments of
silence in the public schools where the State has prescribed
that the moments are to be used for prayer.\14\
None of these prayer activities, in other words, are
constitutionally protected; and SEA or LEA policies or
actions to prevent students and teachers from engaging in
such activities, thus, would not, or should not, trigger the
cutoff of funds under the Helms-Lott amendment.
But while the Court has been clear in holding government to
be barred by the establishment clause from sponsoring or
promoting prayer in the public schools, it has had less
occasion to address the converse issue of what prayer
activities must be allowed in the public schools, i.e., what
prayer activities might be considered to be
``constitutionally protected.'' In general the Court has
affirmed that students in public schools do not ``shed their
constitutional rights to freedom of speech or expression at
the schoolhouse gate''\15\; but it has also made clear that
the first Amendment rights of students in the public schools
`are not automatically coextensive with the rights of adults
in other settings' and must be `applied in light of the
special characteristics of the school environment,'''\16\ Yet
specific rulings illuminating the parameters of those
generalities and, consequently, the scope of the standard
articulated in the Helms-Lott amendment are few. One can
surmise, for instance, that it would violate both the free
speech and free exercise clauses of the First Amendment for a
SEA or LEA to forbid a student from praying silently during
the school day or, perhaps, even from praying aloud, at least
so long as the prayer activity was not disruptive of the
school environment and did not connote school endorsement.
But our research has found no case directly on point.\17\
Other areas involving prayer in the public schools have
more decisional authority, but the parameters of what is
constitutionally protected or mandated or permissible have
not been fully defined. For instance, the Court has indicated
in dicta that it would be constitutionally permissible for a
State to provide for a moment of silence in the public
schools that could be used by students, inter alia, for
voluntary prayer.\18\ But in the one case in which it
considered the issue, it struck down the specific silent
prayer or meditation statute that was before it on the
grounds the State adopted the statute to promote prayer\19\;
and it has so far chosen not to address the issue again. The
one subsequent lower Federal court decision also struck down
a particular moment of silence statute.\20\ Thus, although it
seems possible for a constitutional policy relating to
moments of silence to be articulated, the courts have not as
yet provided certain guidance.
The Court has also explicitly held the free speech clause
to mandate equal access to school facilities for student-
initiated religious groups at the public college level,\21\
but it has not addressed that constitutional issue at the
public secondary school level. In its one pertinent decision
it construed the Equal Access Act enacted by Congress in
1984\22\ to give student-initiated religious groups at
Federally assisted secondary schools a statutory right to
meet in school facilities on the same basis as other
noncurriculum related student groups, and it held that Act
not to violate the establishment clause.\23\ But in that
decision it explicitly avoided the question of whether the
constitutional right it found in Widmar v. Vincent, supra,
extended to students in public secondary schools. The Helms-
Lott amendment would seem to require that issue to be
resolved in the instance that a school district failed to
comply with the Equal Access Act, i.e., denied a student
religious group the opportunity to meet in school facilities
on the same basis as other student noncurricular groups. The
answer to the constitutional issue, however, is
uncertain.\24\
Some degree of uncertainty about what is constitutionally
protected also attends the issue of commencement prayer. In
Lee v. Weisman, supra, the Supreme Court held school-
initiated and clergy-delivered prayer at a public secondary
school's commencement ceremony to be unconstitutional.
Subsequently, however, the U.S. Court of Appeals for the
Fifth Circuit, as well as a Federal district court in Idaho,
differentiated student-initiated and student-delivered prayer
at a public secondary school's commencement ceremony and held
that kind of commencement prayer to be constitutional.\25\
The Supreme Court chose not to review the Fifth Circuit's
decision, despite the fact that analogous decisions
involving school prayer suggested it might not be
correct.\26\ Thus, student-initiated prayer at
commencement ceremonies might for now be considered to be
constitutionally protected in the jurisdiction of the
Fifth Circuit and in Idaho, but its status elsewhere, as
well as its ultimate constitutional status in the Fifth
Circuit and Idaho, remains uncertain.
In short, what prayer activities in the public schools are
constitutionally protected has not as yet been fully
delineated. As a consequence, considerable ambiguity would
seem to attend the application of the funds cutoff standard
of the Helms-Lott amendment.
(4) What does the counterpart phrase in the Levin
amendment--``a constitutional policy relative to prayer in
the public school''--mean? This standard appears to have the
same potential for ambiguity as the one articulated in the
Helms-Lott amendment. If a SEA or LEA adopted a policy that
did no more than track what the Supreme Court has held to be
constitutionally prohibited, as described above, it would
seem to satisfy this standard. But if it went beyond what has
been explicitly articulated by the Court and addressed such
issues as individual oral prayer or moments of silence for
prayer or meditation or meetings of student religious groups
beyond what is required by the Equal Access Act or student-
initiated and led prayer at commencement ceremonies, it would
encounter the same legal ambiguities that have been detailed
above. Pending an administrative decision by the Department
of Education or litigation, or both, it would not be certain
whether a particular policy would, or would not, insulate a
SEA or LEA from a cutoff of funds.
(5) Would any of the amendments violate the Constitution?
None of the amendments appear to be unconstitutional. The
sense of the Senate amendment pertaining to moments of
silence for prayer or meditation described does not, as noted
above, have any binding legal effect that might raise a
constitutional issue. But even if the policy it recommends
were implemented, the policy does not appear to endorse
prayer as the preferred activity for such moments and
arguable would not contravene the Court's decision in Wallace
v. Jaffree, supra. With respect to the cutoff of funds in the
Helms-Lott amendment, it suffices to note that Congress has
broad power to impose conditions on the receipt of Federal
funds.\27\
footnotes
\1\140 CONG. REC. S756 (daily ed. Feb. 3, 1994).
\2\Id., at S741.
\3\Id., atS841 (daily ed., Feb. 4, 1994).
\4\Id., at S1118 (daily ed. Feb. 8, 1994).
\5\The Levin amendment appears to be a response to the Helms-
Lott amendment as it was eroded prior to the addition of the
words ``constitutionally protected.'' Without those words the
language of the amendment, and some of the examples cited by
its sponsors in justification--see 140 CONG. REC S725-28
(statements of Sen. Helms) and S730-31 (statement of Sen.
Lott) (daily ed. Feb. 3, 1994)--seemed to open the
possibility that SEAs and LEAs could jeopardize their Federal
funding by prohibiting voluntary prayer activities that have
been held unconstitutional by the courts. The Levin amendment
would have vitiated the possibility. But the addition of the
words ``constitutionally protected'' to the Helms-Lott
amendment accomplished that purpose as well.
\6\See 140 CONG. REC. S737-38 and S742-43 (daily ed. Feb. 3,
1994) (statements of Sen. Jeffords).
\7\Id., at S1156 (daily ed., Feb. 8, 1994).
\8\Id., at S724 (daily ed., Feb. 8, 1994) (statement of Sen.
Helms).
\9\Engel v. Vitale, 870 U.S. 421 (1962); Wallace v. Jaffree,
466 U.S. 924 (1984), aff'g mem. 705 F.2d 1526 (11th Cir.
1983).
\10\Abington School District v. Schempp, 374 U.S. 203 (1968).
\11\Karen B. v. Treen, 455 U.S. 913 (1982), aff'g mem. 653
F.2d 897 (1981).
\12\Engel v. Vitale, supra, at 421, and Abington School
District v. Schempp, supra, at 228. In both cases, it might
be noted, the Court found the voluntariness of the exercise
not to be material to its decision. It suggested, in fact,
that because of compulsory schooling, peer pressure, and the
official sanction given the exercises, ``voluntary''
participation might be an impossibility.
\13\Lee v. Weisman, 112 S.Ct. 2649 (1991).
\14\Wallace v. Jaffree, 472 U.S. 88 (1985).
\15\Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 506 (1969).
\16\Hazelwood School District v. Kuhlias, 434 U.S. 260, 266
(1988), quoting Bethel School District No. 403 v. Fraser, 478
U.S. 675, 682 (1986) and Tinker v. Des Moines Independent
Community School District, supra, at 506.
\17\Cf. Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1991),
cert. den., 112 S.Ct. 8025 (1992) (teacher's display and
reading of personal Bible during silent reading periods held,
in the context of the inclusion of religious books in
classroom library and display of religious poster on wall, to
amount to religious proselytizing and to be constitutionally
barred).
\18\Wallace v. Jaffree, supra.
\19\Id.
\20\See Walter v. West Virginia Board of Education, 610
F.Supp. 1169 (D. W.Va. 1985) (constitutional amendment
adopted by referendum providing for ``brief time at the
beginning of each school day for any student to exercise
their right to personal and private contemplation,
meditation, or prayer'' held to have a purpose of returning
prayer to the public schools and to be unconstitutional).
\21\Widmar v. Vincent, 454 U.S. 263 (1981).
\22\20 U.S.C. 4071-74 (1988).
\23\Westside Community Board of Education v. Mergens, 496
U.S. 226 (1990).
\24\Prior to Mergens, four Federal appellate courts had held
the accommodation of student-initiated religious meetings on
the premises of public secondary schools not to be mandated
by either the free speech or free exercise clauses, but one
Federal district court had held to the contrary. Compare
Brandon v. Board of Education of the Guilderland Central
School District, 635 F.2d 971 (2d Cir. 1980), cert. den., 454
U.S. 1123 (1981); Lubbock Civil Liberties Union v. Lubbock
Independent School District, 659 F.2d 1038 (5th Cir. 1982),
cert. den., 459 U.S. 1156 (1983); Bell v. Little Axe
Independent School District, 766 F.2d 1391 (10th Cir. 1985);
and Garnett v. Renton School District No. 403, 874 F.2d 608
(9th Cir. 1989), judg. vacated and case remanded for further
consideration in light of Mergens, 496 U.S. 914 (1990) with
Bender v. Williamsport Area School District, 563 F.Supp. 697
(M.D. Pa. 1983), rev'd, 741 F.2d 538 (3d Cir.), vacated for
want of jurisdiction, 475 U.S. 584 (1986) (the Supreme Court
held that the party that had taken an appeal from the
district court's decision had no standing to do so, that
therefore neither it nor the Third Circuit had jurisdiction
to issue a decision on the merits in the case, and that,
consequently, the district court's decision that secondary
school students had a constitutional right to meet for
religious purposes on school premises stood as the final
decision in the case).
\25\See Jones v. Clear Creek Independent School District, 977
F.2d 963 (5th Cir. 1992), cert. den., 61 U.S.L.W. 3819 (1993)
and Harris v. Joint School District No. 241, 1193 US Dist
LEXIS 6684 (D. Id. 1993).
\26\See, e.g., Collins v. Chandler United School District,
470 F.Supp. 959 (D. Ariz. 1979), aff'd, 644 F.2d 759 (9th
Cir.), cert. den., 454 U.S. 863 (1981) (student council
sponsorship of prayer by students at beginning of school
assemblies held unconstitutional).
\27\South Dakota v. Dole, 483 U.S. 208 (1987).
____
Some Guiding Constitutional Principles Regarding Student Expression,
Including Voluntary Participation in Student-Initiated Prayer
(By James Matthew Henderson, Sr.)
i. public school students enjoy substantial protection of the right to
freedom of speech under the united states constitution
The First Amendment of the United States Constitution, made
applicable to public schools by operation of the Fourteenth
Amendment, provides significant protection for public school
students who desire to exercise their right to freedom of
speech while on campus. Tinker v. Des Moines Ind. Sch. Dist.,
393 U.S. 503 (1969).\1\ In Tinker, the Supreme Court said
that public school students do not ``shed their
constitutional rights to freedom of speech or expression at
the schoolhouse gate.'' Tinker, 393 U.S. at 506.\2\
---------------------------------------------------------------------------
Footnotes at end of article.
---------------------------------------------------------------------------
In Tinker, the Court addressed a dispute that arose when
some students wore black armbands in school and during class
to protest the Vietnam War. The school authorities ordered
the students to remove the armbands or to leave school. The
Supreme Court ruled that the school authorities had violated
the Constitution, and construed the students' First Amendment
rights broadly: ``in our system, state-operated schools may
not be enclaves for totalitarianism. School officials do not
possess absolute authority over their students. Students in
school as well as out of school are persons under our
Constitution. They are possessed of fundamental rights which
the state must respect, just as they themselves must respect
their obligations to the state. In our system, students may
not be regarded as closed-circuit recipients of only that
which the state chooses to communicate. They may not be
confined to the expressions of those sentiments that are
officially approved.'' Tinker, 393 U.S. at 511 (emphasis
added).
Under the First and Fourteenth Amendments, as held in
Tinker, public schools may not limit student-initiated speech
unless it ``would materially and substantially interfere with
the requirements of appropriate discipline in the operation
of the school.'' Tinker, 393 U.S. at 509 (citation
omitted).\3\
As the Supreme Court has also noted: ``[t]he vigilant
protection of constitutional freedoms is nowhere more vital
than in the community of American schools.'' Shelton v.
Tucker, 364 U.S. 479, 487 (1967). In fulfilling this vital
role, the Congress, the Executive, and the Courts should
encourage public schools to ``apply the First Amendment
mandates in our educational system'' ``to safeguard the
fundamental values of freedom of speech and inquiry . . . .''
Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
ii. complete prohibitions on student expression, including student-
initiated prayer, fail constitutional scrutiny under the supreme
court's public forum doctrine
Under the ``Public Forum Doctrine,'' elucidated in the
decisions of the United States Supreme Court, regulations
prohibiting students from participating in voluntary,
student-initiated prayer must be examined under the strictest
scrutiny.\4\
In Cornelius v. NAACP Legal Defense & Educational Fund, 473
U.S. 788 (1985), the United States Supreme Court enunciated
the proper analysis for determining the existence of First
Amendment Rights in a given locale. First, it must be
determined whether the activity at issue is speech protected
by the First Amendment. If protected speech is at issue, the
next step is to identify the nature of the forum, the public
school. The extent to which the government may limit access
depends on whether the forum is public or non-public.
Finally, it must be determined whether the justifications for
exclusion of the speech from the relevant forum satisfy the
requisite standard of constitutional scrutiny.
A. Voluntary, student-initiated prayer is protected under the first and
fourteenth amendments
It is a constitutional axiom that the religious speech,
including prayer, is a form of expression protected by the
First Amendment. See, e.g., Widmar v. Vincent, 454 U.S. 263,
269 (1981); Heffron v. International Society for Krishna
Consciousness, 454 U.S. 640 (1981).
B. For duly enrolled students, public schools are designated forums for
freedom of speech
The Supreme Court has identified three types of fora for
First Amendment analysis: (1) traditional public fora (e.g.,
streets, sidewalks, and parks, Hague v. C.I.O., 307 U.S.
496 (1939)); (2) designated public fora (e.g., public
university, Widmar v. Vincent, 454 U.S. 263 (1981)); and
(3) nonpublic fora (e.g., jails, Adderley v. Florida, 385
U.S. 39 (1966)). See, Board of Airport Commissioners v.
Jews for Jesus, Inc. 482 U.S. 569, 572 (1987); Perry
Educators v. Perry Local Educators Assn., 460 U.S. 37, 45-
46 (1983). For each of these, the Court has established
standards of review applicable to government restrictions
on speech.
Public school campuses are designated, or opened, public
forums for the students in attendance. Of course, public
school officials need not tolerate on campus interlopers
unrelated to the purposes and functions of the school.
Students, on the other hand, are compelled by state laws to
spend some six hours a day on campus. While on campus,
students enjoy periods of varying supervision and control. In
those periods when student expression would not be disruptive
of order and discipline, or substantially interfere with the
rights of others, the fact that student speech is widely
tolerated leads to the conclusion that schools are intended
to be places for student speech.
At least for matriculated students, classrooms, lunchrooms,
and hallways are ``necessary conduit[s] in the daily affairs
of a locality's citizens.'' Heffron v. ISKCON, Inc., 452 U.S.
640, 651 (1981). Indeed, as one federal court has put it,
interpreting Tinker, ``whether or not a school campus is
available as the public forum to others, it is clear that the
students, who of course are required to be in school, have
the protection of the First Amendment while they are lawfully
in attendance.'' Rivera v. East Otero School District, 721 F.
Supp. 1189, 1197 (D.Colo. 1989).
In these fora, with their general access for students,
``[t]he crucial question is whether the manner of expression
is basically incompatible with the normal activity of a
particular place at a particular time.'' Grayned, 408 U.S. at
115-16. When the issue is compatibility of the speech,
regulations of time, place and manner, not complete bans, are
the appropriate means of securing legitimate governmental
interests. A school district that bars all voluntary,
student-initiated speech on campus studiously disregards the
rule that ``one who is rightfully [in a forum] which the
state has left open to the public carries with him there as
elsewhere the constitutional right to express his views in an
orderly fashion.'' Jamison v. Texas, 318 U.S. 413, 416
(1943).
C. A complete prohibition on voluntary, student-initiated prayer fails
the requisite constitutional analysis
In Tinker, the Supreme Court rejected the effort to
interfere with student speech, even in the classroom proper,
in the absence of objective evidence that the expressive
activity would ``materially and substantially interfere with
the requirements of appropriate discipline in the operation
of the school.'' Tinker, 393 U.S. at 509 (citation omitted).
By requiring objective evidence, the Supreme Court indicated
that school officials must produce concrete evidence that the
student speech objectively disrupts the operation of the
school.
Unless a public school can offer evidence of specific
``material and substantial'' disruptions resulting from
voluntary, student-initiated prayer, it would lack the
requisite constitutional warrant to take action against such
speech. By asserting some undifferentiated fear of
disruption, a public school would fail to satisfy the
requisite constitutional standards. As the Supreme Court
said, ``in our system, undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom
of expression.'' Tinker, 393 U.S. at 508. Absent unusual
circumstances, there simply is no basis that ``might
reasonably [lead] school authorities to forecast substantial
disruption or material interference with school activities.''
Tinker, 393 U.S. at 514, resulting from participation in
voluntary, student-initiated prayer.
The burden on school authorities in cases where a public
school completely prohibits all student-initiated voluntary
prayer is significant. Such content-related, flat bans must
be subjected to heightened scrutiny. As explained by the
Supreme Court, the standard for government regulation in such
cases is: ``the government may not prohibit all communicative
activity. For the State to enforce a content-based exclusion
it must show that its regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to
achieve that end. . . . The State may also enforce
regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample
alternative channels to communication.'' Perry Ed, Assn. 460
U.S. at 45-46. Furthmore, ``[a]dditional restrictions as an
absolute prohibition on a particular type of expression will
be upheld only if narrowly drawn to achieve a compelling
interest.'' Grace, 461 U.S. at 177.\5\
There are few, if any, circumstances in which the
government of a republic can express adequate reasons to
justify a prohibition on an entire class of speech. Student-
initiated prayer lacks the indicia of speech which is readily
subject to special disability (it is unlike defamation,
obscenity, the revelation of troop movements during times of
war, or fighting words).
iii. even in a nonpublic forum, a ban on student-initiated voluntary
prayer would be unconstitutional
Even if public school campuses are nonpublic forums, a flat
ban of student-initiated voluntary prayer would still be
unconstitutional under the standards applicable to nonpublic
fora.\6\ Viewed ``in light of the purpose of the forum and
all the surrounding circumstances,'' Cornelius, 473 U.S. at
808, a flat ban would be manifestly unreasonable.
Given the purpose and circumstances of the relevant fora,
an absolute prohibition is patently unreasonable. Public
school campuses are not exclusively dedicated to pedagogical
employment. Not is a student's act of voluntary participation
in student-initiated prayer somehow destructive of a public
school campus or of the learning environment generally. Any
other approach, admitting of intolerance of religion, would
relegate students to a status of closed-circuit recipients of
only that which the public schools approve.
iv. voluntary, student-initiated prayer on a public school campus
cannot violate the establishment clause.
When public school officials interfere with voluntary,
student-initiated prayer, such actions usually result from
ignorance; that is, administrators assume that such student
religious speech threatens the ``wall of separation between
church and state.'' Because the Establishment Clause is a
restraint on government establishments, not student religious
exercises, such school officials act out of an erroneous and
fundamental misconception.
In Widmar v. Vincent, 454 U.S. 263 (1981), for example, the
Supreme Court ruled that religious speech cannot be barred
from the campus forum simply because it is religious. In
Widmar, the University of Missouri-Kansas City allowed
student groups to meet in campus facilities, but excluded a
student evangelical Christian group from meeting on campus
solely because it was religious. The Supreme Court said,
``Here UMKC has discriminated against student groups and
speakers based on their desire to use a generally open forum
to engage in religious worship and discussion. These are
forms of speech and association protected by the First
Amendment.'' 454 U.S. at 269.
The Supreme Court applied the Widmar principles to public
schools, in a statutory context, in Board of Education v.
Mergens, 496 U.S. 226 (1990). The Court held that public high
schools cannot bar a student-led Bible study from meeting on
campus when other non-curriculum groups are allowed to
meet on campus.
Only a compelling state interest can justify a content-
based burden on certain speakers using an open forum, Perry,
460 U.S. at 45; Widmar, 454 U.S. at 270; Cornelius, 473 U.S.
at 800. There is no compelling state interest to support a
complete prohibition on student religious speech and the
Establishment Clause does not require such an exclusion.
A. Students Cannot Violate the Establishment Clause
The Mergens opinions expresses the crucial point that only
the government can violate the Establishment Clause, and the
students are not governmental representatives. This common
sense distinction reflects the Establishment Clause's
intended limitation on the power of governments, not on the
rights of individual students. As Justice O'Connor stated,
``there is a crucial difference between government speech
endorsing religion, which the Establishment Clause forbids,
and private speech endorsing religion, which the Free Speech
and Free Exercise Clauses protect.'' 496 U.S. at 250
(emphasis in original).
Thus, ``separation of church and state'' justifications
thrown up in the faces of praying students are legal
irrelevancies. The acts of a student are the acts of a
private citizen, not of a government entity. Public schools
employees and officials can violate the Establishment Clause;
students cannot do so. The Supreme Court also has stated, as
a general proposition, that the activities of student
evangelists in a public school do not present Establishment
Clause problem: ``Petitioner's principal contention is that
the [Equal Access] Act [Title 20 U.S.C. Sec. Sec. 4071 et
seq.] has the primary effect of advancing religion.
Specifically, petitioners urge that, because the student
religious meetings are held under school aegis, and because
the state's compulsory attendance laws bring the students
together (and thereby provide a ready-made audience of
student evangelists), an objective observer in the position
of a secondary school student will perceive official school
support for such religious meetings. . . . We disagree.''
Mergens, 496 U.S. at 249.
Because the government, not students, is limited by the
Establishment Clause, students are incapable of violating the
clause unless they act as agents of the government. In
contrast, students who act on their own behalf and engage in
speech activities as a result of personal belief or interest,
are fully protected by the First Amendment. Therefore, public
schools cannot use the Establishment Clause as a rationale to
ban religious speech by students.
B. Public schools do not endorse the religious views of Students Engage
din Voluntary student-initiated prayer on campus
The apparent concern of some, that mere accommodation of
student religious activities on campus violates the
Establishment Clause, is without basis in law. The Supreme
Court has repeatedly rejected that notion, most recently in
Mergens. There the Court stated, ``secondary school students
. . . are likely to understand that a school does not endorse
or support student speech that it merely permits on a
nondiscriminatory basis. . . .'' Mergens, 496 U.S. at 250.
Despite the fact ``that schools do not endorse everything
they fail to censor,'' id., some public school officials will
continue to entertain unwarranted fears about the ``church-
state'' issue.
Of course this point, regarding private religious uses of
public property, was also made in the context of a public
university in Widmar v. Vincent: An open forum in a public
university does not confer any imprimatur of state approval
on religious sects or practices.'' 454 U.S. 274. The Supreme
Court also said in Widmar: ``But by creating a forum the
University does not thereby endorse or promote any of the
particular ideas aired there. Undoubtedly many views are
advocated in the forum with which the University desire no
association.'' 454 U.S. at 271 n.10. In Mergens, Supreme
Court applied this principal to public secondary schools,
saying that public schools do not violate the Establishment
Clause when they allow student religious groups to meet on
Campus. Mergens, 110 L.Ed.2d at 214. Thus the Supreme Court
has twice rejected, in Widmar and Mergens, application of the
Establishment Clause to the private speech of students
otherwise entitled to be present on a public campus.
In fact, a policy excluding voluntary, student-initiated
prayer because of its religious content would violate the
second prong of the Lemon test. See Lemon v. Kurtzman, 430
U.S. 602, 612-613 (1971).\7\ Such a policy or practice would
demonstrate hostility toward religion, and would have a
primary effect of inhibiting religion. The Establishment
Clause requires government neutrality toward religion.
C. The Government has a ``duty to accommodate'' religious speech and
accommodation does not violate the establishmost clause
The Supreme Court has ruled that governments have the duty
to accommodate religious beliefs and practices, and that such
accommodation does not result in unconstitutional endorsement
of religion, in violation of the Establishment Clause, In
Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court
stated, ``[the First Amendment] affirmatively mandates
accommodation, not merely tolerance, of all religions, and
forbids hostility toward any.'' 465 U.S. at 673. And, in
Hobbie v. Unemployment Appeals Commission, 480 U.S. 136
(1987), the Supreme Court reiterated that concept:
This Court has long recognized that the government may (and
sometimes must accommodate religious practices and that it
may do so without violating the Establishment Clause.''480
U.S. at 144. The Supreme Court expressed the correct balance
in Widmar and Mergens, that accommondation of religious
speech under a neutral policy is not an advancement of
religion and does not violate the Establishment Clause.
footnotes
\1\In a subsequent decision addressing the right to freedom
of speech on a public sidewalk adjacent to a public school,
the United States Supreme Court reiterated its Tinker
decision: [In Tinker, w]e concluded that free expression
could not be barred from the school campus. We made clear
that ``undifferentiated fear or apprehension of disturbance
is not enough to overcome the right to freedom of
expression,'' and that particular expressive activity could
not be prohibited because of a ``mere desire to avoid the
discomfort and unpleasantness that always accompany an
unpopular viewpoint . . . .'' Grayned v. City of Rockford,
408 U.S. 104, 117 (1972) (citations omitted).
\2\Undoubtedly, school officials have ``important, delicate
and highly discretionary functions'' to perform. West
Virginia v. Barnette, 319 U.S. 624, 637 (1943). These
functions, however, must be performed ``within the limits of
the Bill of Rights.'' Barnette, at 637.
\3\The Supreme Court has relied on its Tinker decision when
addressing students' expressive rights in other contexts on
campus. In Hazelwood School District v. Kuhlmeier, 484 U.S.
260 (1988), the Court reaffirmed Tinker as the standard for
evaluating restrictions on student-initiated speech.
Hazelwood addressed the right of a Missouri school district
to edit and eliminate student-written stories from the high
school newspaper because of inappropriate content. The
Supreme Court unequivocally stated that the issues in
Hazelwood concerning dissemination of a school-sponsored,
student-written newspaper are very different from the issue
of dissemination of student writing that is not school-
sponsored: The question whether the First Amendment requires
a school to tolerate a particular student's speech--the
question that we addressed in Tinker--is different from the
question of whether the First Amendment requires a school
affirmatively to promote particular student speech. The later
question concerns educators' authority over the school-
sponsored publications, theatrical productions, and other
expressive activities that the students, parents and members
of the public might reasonably perceive to bear the
imprimatur of the school. 484 U.S. at 270-71.
\4\Importantly, the Tinker Court held that ``personal
intercommunication among students'' in high schools is an
activity to which schools are dedicated. Tinker, 393 U.S. at
512 (and accompanying footnote).
\5\In a long line of cases, the Supreme Court has
consistently struck down such sweeping prohibitions of
cherished First Amendment speech. In Board of Airport
Commissioners v. Jews For Jesus, 482 U.S. 569 (1987), for
example, the Supreme Court held unconstitutional a regulation
which prohibited all free speech activities in an airport
terminal. As the Supreme Court explained, ``we think it
obvious that such a ban cannot be justified even if [the
airport terminal] were a nonpublic forum because no
conceivable governmental interest would justify such an
absolute prohibition of speech.'' 482 U.S. at 575. No
compelling governmental interest supports a flat ban on
student-initiated religious speech on public school campuses.
\6\In a nonpublic forum, a regulation of speech must be
reasonable and viewpoint neutral. See, e.g., ISKCON, Inc. v.
Lee, 120 L.Ed. 2d. 541 (1992).
\7\In its cases interpreting the Establishment Clause, the
Court has come to employ a three-pronged analysis commonly
called the Lemon test. See, e.g., Harris v. McRae, 448 U.S.
297, 319 (1980) (government action does not contravene the
Establishment Clause if it has a secular legislative purpose,
then its principal or primary effect neither advances nor
inhibits religion; and, if it does not foster an excessive
government entanglement with religion).
Mr. COATS. Mr. President, I rise in support of the amendment offered
by the Senator from North Carolina. Religion is not just part of the
practice of our Nation, it is part of the theory of our founding.
Banning voluntary prayer in our schools threatens religious expression
and denies our history. The Helms amendment affirms the right of public
school students to participate in constitutionally protected prayer on
a voluntary basis.
As the Senator has stated, this language, which the Senate passed as
an amendment to the Goals 2000 bill by a vote of 75 to 22, was
subsequently removed in conference.
When the Supreme Court decided its landmark school prayer case in
1963, Abington versus Schempp, two dissenting justices warned that
``unilateral devotion to the concept of neutrality can lead to * * *
not simply noninterference and noninvolvement with the religious which
the Constitution demands, but a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the religious.''
No phrase could more accurately describe the current thinking about
school prayer--``a brooding and pervasive devotion to the secular.'' It
denies the central role of religion in our public life. It ignores the
value of a child's hope and belief in a higher power.
Religion was intended to play an important part in America's public
life--not to favor any sect, but to affirm our traditions and beliefs,
and to assert the source of all our liberties. America has a history of
religious accommodation, not secular hostility.
When all reference to religion is omitted from our public life, we
have declared off-limits the expression of people's deepest motivations
and highest beliefs. We have created a naked public square--a public
life scrubbed of the sacred, in which religious people lose important
rights and our Nation is ultimately impoverished.
There is a difference between religious indoctrination, and the
simple acknowledgement of the creator. We seem to have lost the ability
to make that distinction.
Mr. KEMPTHORNE. Mr. President, I support the amendment offered by
Senator Helms that would withhold chapter I funding from any school
district that denies their students their constitutional right to
prayer.
Idaho is no stranger to the issue of school prayer. We have a case
currently before the Ninth Circuit Court of Appeals looking at this
very issue. The Grangeville, ID, School District was making no effort
to infringe on a student's right to constitutionally protected prayer.
In fact, they were giving them the freedom to practice constitutionally
protected prayer. But the American Civil Liberties Union is trying to
make the case that those students should not be given that freedom.
Mr. President here are the facts. The Grangeville School Board allows
their students to plan the entire graduation ceremony; who speaks, what
is done, even what school board members are invited to attend or pass
out diplomas, and yes, whether or not there will be a prayer. In 1990,
the American Civil Liberties Union notified the school board that they
would file suit if prayer was allowed at the graduation ceremonies. The
school board stood their ground and said it was up to the students how
their graduation ceremony would be conducted. At the same time, a
citizens group and the students asserted their right to pray and the
right to free exercise and free speech.
Last year, District Court Judge Harold Ryan ruled in favor of the
citizens and students, and denied the ACLU summary judgment and allowed
the prayer to continue.
The ACLU has appealed that decision and it now is before the Ninth
Circuit Court of Appeals.
I am no stranger to the threat that exists to this constitutional
right to free speech. As mayor of Boise, ID, for 7 years, I began every
city council meeting with a prayer. After several years of inviting
representatives of all denominations to offer the prayer at the weekly
meetings, I was informed that a suit may be filed to stop this
practice. My response was not to stop prayers prior to our council
meetings. I feel as strongly today as I did at that time. We must never
willingly surrender our right to prayer.
I recently received a letter from members of the United Methodist
Church in Boise where they shared with me their concerns for this
attack on freedom. They shared their motivation in our Nation to
express our faith and reliance on God in public life.
I quote from their letter:
Our Founding Fathers regarded the Bible as a Holy writ and
based the Declaration of Independence and our Constitution on
its wisdom. They knew the law of all civilized man is based
on the Ten Commandments. They are philosophical absolutes
that shaped our national tradition. Yet it is deemed
politically incorrect to make reference to or use Biblical
wisdom.
It seems to us that in our attempt to be unprejudiced in
this pluralistic society we have sacrificed Truth on an altar
of unprincipled tolerance.
How far afield from our religious roots our Nation under
God has gone! We believe that if this trend is not reversed
our Nation will surely perish, not at the hand of an enemy
from without, but by our own moral decay from within.
Mr. President. I share those concerns. I favor voluntary prayers in
school and at commencement exercises. While the Constitution states
that the Government shall not establish a national religion, I do not
believe that should be interpreted to prevent all religious activities
in public institutions.
Our Founding Fathers wanted everyone in the United States to practice
the religion of their choice in the way they choose. They did not
intend for us to deny the existence of religion in this country, but
wanted to recognize the legitimacy of different religions to exist
without governmental interference or promotion.
Mr. President. I support the Helms amendment to allow those students
of this Nation to go back to those religious roots through voluntary,
constitutionally protected prayer, and to allow school administrators
to be sensitive to those students' desires.
Mr. HELMS. Mr. President, I ask unanimous consent that the rollcall
vote on school prayer on February 3, to which I allude, be printed in
the Record immediately before the vote on the pending amendment.
There being no objection, the vote was ordered to be printed in the
Record, as follows:
Goals 2000: Educate America Act
The Senate continued with the consideration of the bill.
vote on amendment no. 1382, as modified
The Presiding Officer. Under the previous order, the Senate
will now vote on amendment No. 1382 offered by the Senator
from North Carolina. The yeas and nays have been ordered. The
clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. Simpson. I announce that the Senator from Arizona [Mr.
McCain], the Senator from Oklahoma [Mr. Nickles], and the
Senator from Alaska [Mr. Stevens] are necessarily absent.
The Presiding Officer [Mr. Daschle]. Are there any other
Senators in the Chamber desiring to vote?
The result was announced--yeas 75, nays 22, as follows:
[Rollcall Vote No. 22 Leg.]
YEAS--75
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boren
Bradley
Breaux
Brown
Bumpers
Burns
Byrd
Campbell
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeConcini
Dodd
Dole
Domenici
Dorgan
Durenberger
Exon
Faircloth
Ford
Gorton
Graham
Gramm
Grassley
Gregg
Hatch
Heflin
Helms
Hollings
Hutchison
Johnston
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Lieberman
Lott
Lugar
Mack
Mathews
McConnell
Mikulski
Mitchell
Moseley-Braun
Murkowski
Nunn
Packwood
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Sarbanes
Sasser
Shelby
Simpson
Smith
Thurmond
Wallop
Warner
Wofford
NAYS--22
Boxer
Bryan
Chafee
Danforth
Feingold
Feinstein
Glenn
Harkin
Hatfield
Inouye
Jeffords
Kassebaum
Leahy
Levin
Metzenbaum
Moynihan
Murray
Pell
Riegle
Simon
Specter
Wellstone
NOT VOTING--3
McCain
Nickles
Stevens
So the amendment (No. 1382), as modified, was agreed to.
Mr. Helms. Mr. President, I move to reconsider the vote and
move to lay that motion on the table.
The Presiding Officer. Without objection, it is so ordered.
The motion to lay on the table was agreed to.
Mr. HELMS. Mr. President, we are nearing the bewitching hour of 6:20.
I yield back my time and suggest we go to a vote on the Helms
amendment.
The PRESIDING OFFICER (Mr. Wellstone). Is there objection? Without
objection, it is so ordered.
Vote on Amendment No. 2416
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from North Carolina.
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER (Mr. Reid). Are there any other Senators in the
Chamber who desire to vote?
The result was announced--yeas 47, nays 53, as follows:
[Rollcall Vote No. 236 Leg.]
YEAS--47
Bennett
Bingaman
Bond
Boren
Brown
Burns
Byrd
Coats
Cochran
Coverdell
Craig
D'Amato
Dole
Domenici
Faircloth
Ford
Gorton
Gramm
Grassley
Gregg
Hatch
Heflin
Helms
Hollings
Hutchison
Johnston
Kempthorne
Lott
Lugar
Mack
Mathews
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Roth
Sasser
Shelby
Simpson
Smith
Stevens
Thurmond
Wallop
Warner
Wofford
NAYS--53
Akaka
Baucus
Biden
Boxer
Bradley
Breaux
Bryan
Bumpers
Campbell
Chafee
Cohen
Conrad
Danforth
Daschle
DeConcini
Dodd
Dorgan
Durenberger
Exon
Feingold
Feinstein
Glenn
Graham
Harkin
Hatfield
Inouye
Jeffords
Kassebaum
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Pryor
Reid
Riegle
Robb
Rockefeller
Sarbanes
Simon
Specter
Wellstone
So the amendment (No. 2416) was rejected.
Mr. KENNEDY. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KENNEDY. May we have order, Mr. President.
Parliamentary inquiry. What is the matter before the Senate?
The PRESIDING OFFICER. The question is on agreeing to amendment No.
2415 offered by the Senator from Kansas. The yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER (Mr. Dorgan). Are there any other Senators in
the Chamber who desire to vote?
The result was announced--yeas 93, nays 7, as follows:
The result was announced--yeas 93, nays 7, as follows:
[Rollcall Vote No. 237 Leg.]
YEAS--93
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boren
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeConcini
Dodd
Dole
Domenici
Dorgan
Durenberger
Exon
Faircloth
Feinstein
Ford
Glenn
Graham
Gramm
Grassley
Gregg
Harkin
Hatch
Heflin
Helms
Hollings
Hutchison
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
Mathews
McCain
McConnell
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Riegle
Robb
Rockefeller
Roth
Sarbanes
Sasser
Shelby
Simpson
Smith
Stevens
Thurmond
Wallop
Warner
Wellstone
Wofford
NAYS--7
Chafee
Danforth
Feingold
Gorton
Hatfield
Simon
Specter
So the amendment (No. 2415) was agreed to.
Mr. KENNEDY. Mr. President, I move to reconsider the vote by which
the amendment was agreed to.
Mr. MITCHELL. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KENNEDY. Mr. President, we wanted to continue to move forward. As
I think the Members know, this legislation we had intended to be laid
down at the very early part of the morning. Then for various reasons,
we did not get to this amendment until somewhat later in the day.
I think it has been a very important and constructive debate on a
very, very important constitutional issue. As we have seen from the
votes, this is a very important public policy matter.
We have probably 10 different amendments which we are prepared to
deal with this evening. The major item that comes in different forms is
on a question about the potential formula change. We are prepared to
deal with that. I have been notified by two of those that have
amendments that their materials have not been put into sufficient order
to vote on those matters.
We have what we call the fight or flight; the vouchers in unsafe
schools, Senator Coats and Senator Dole, which we are prepared to deal
with; Senator Danforth's amendment on single-sex schools; the longer
year program, Senator Simon; a private management amendment by Senator
Specter; we have some prenatal care counseling, Senator Specter; a
change in the IDEA provisions, by Senator Gorton; we have a potential
one dealing with immigrants in the rural National Service Program.
There may be others.
We have tried to indicate and give as much notice to our Members as
possible on these votes. I anticipate, from conversations we had just a
short while ago, that we will probably have two more votes. I hope that
we can give an indication to the membership in a short while as to the
time when those votes might be. We are in one of those circumstances
where the managers are prepared to move ahead. I have talked to at
least a half-dozen of these Members and urged them to bring these
matters up. We have been--for whatever reason, there is a reluctance to
bring them up this evening.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Kerry). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DeCONCINI. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. KERRY). Without objection, it is so
ordered.
Mr. DeCONCINI. Mr. President, I am going to speak for a couple of
minutes while Senators are working out this evening's arrangement.
____________________