[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:
---------------------------------------------------------------------------
     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.

                          ____________________