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the questions regarding prayer in the classroom needing more complete answers include: 1) What is permissible?, 2) why is it permissible?, and 3) when is it permissible?
Prayers must be classified before it can be determined which are permissible and which impermissible. One simple classification divides prayer into silent and oral. Repeatedly the Supreme Court has emphasized the distinction between the freedom to believe (silent) and the freedom to act (oral). The freedom to believe, it has said, is absolute, but in the nature of things the freedom to act cannot be. Oral prayer comes under the freedom to act and must of necessity carry some limitaitons. Silent prayer comes under the freedom to believe and should not, in fact can not, carry any limitations. Paul W. Bruton of the University of Pennsylvania Law School has said, "No one has been forbidden to engage in prayer in a public school if he wishes to do so as a purely individual activity."" One high school principal spoke to the point directly in a note to his students in the school yearbook when he said, "Of one thing we may be certain. although prayer may be removed from the school, it cannot be removed from the student unless he desires it so. I commend the privilege of prayer to you to embrace as a daily personal practice.' Silent prayer is not only permitted, but encouraged.
Certain oral prayer is permissible. Robert Matthews, Attorney General of the Commonwealth of Kentucky, in an official opinion declared, "In our opinion, nothing objectionable would be found in a student. during a period of meditation, voluntarily or spontaneously saying a prayer, silent or vocal." During the hearings on school prayers before the Committee on Judiciary of the House of Representatives, Committee Chairman Emanuel Celler pointed out, “I say that the teacher, consistent with this decision, could say to the children, 'You are now permitted for a period of two minutes to recite to yourselves if you wish, a prayer.' They could do it out loud or they could do it as meditatively without saying a word."
To one recognized authority in the field of church-state relations, Leo Pfeffer, it is obvious that prayer has not been forbidden. He noted, "There is not one word in any decision of the Supreme Court including Murray, Engel, Zorach, or McCollum, or any state court decision which can, to any extent, be interpreted as forbidding children to pray or to read the Bible in the public schools." "
A second way to classify prayers in order to determine which are and which are not permissible is by voluntary prayer and prayer that is voluntary. The difference may seem trite at first, but I am convinced this is really the heart of the decision. By voluntary prayer I mean one in which the student makes the determination as to what is said, when it is said, how it is said, etc. By a prayer that is voluntary I mean one in which the state makes the determinations and the only choice the student has that is "voluntary" is whether or not he chooses to participate. Repeatedly the Supreme Court has ruled that the second classification, prayer that is voluntary, is illegal. The U.S. Supreme Court has never ruled on the first classification, voluntary prayer. Prayers suggested by the state as "voluntary" are numerous. In the Engel Prayer Decision the prayer under consideration was "Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country." 10 Some three and a half years later, in the New York case Stein vs. Oshinsky, the U.S. Supreme Court refused to hear an appeal banning two prayers suggested as voluntary, "God is great, God is good, and we thank Him for our food, Amen," and "Thank you for the world so sweet, thank you for the food we eat, thank you for the birds that sing, thank you God for everything."" The fact that the court did not rule on the voluntary prayer is borne out by a statement from the U.S. Attorney General's office on behalf of the President concerning school prayers, “The court did not rule on the question of whether the practice of
5 Speech of Paul A. Bruton, "The Law of Church and State, Pennsylvania Conference on Church and State, Oct. 13. 1965.
Donald F. Pipe. 1965 Yearbook, Laconia High School, Laconia, N.H.
7 Harry Spark, Kentucky Attorney General's Opinion, OAG 64-111. Feb. 7. 1964.
8 United States Congress, House Committee on the Judici" "y. Hearings on Proposed Amendments to the Constitution Relating to Prayers and Bible Reading in the Public School, 88th Cong., 2d sess., 1964, p. 2050.
Ibid.. p. 924.
10 United States Supreme Court, Engel v. Vitale. 370 U.S. 421 (1962).
11 United States Supreme Court, Matter of Application, Stein v. Oshinsky, No. 629 (1965).
saying school prayers which are not officially sanctioned by public school officials, violates the Constitution." 13
During hearings in Abington U.S. Supreme Court Justice Hugo Black noted, "Students have the right to practice prayer and read the Bible. They do not have the right to the aid of the state in that exercise.' The first part of his statement indicates he would approve voluntary prayer. And, the second part indicates he disapproves of the state organizing that voluntary prayer which would change it to a prayer that is voluntary. The views held by this distinguished jurist have support among professors of law and attorneys general. James C. Kirby, Professor of Law at Vanderbilt University, when asked if non-prescribed prayers should be in school answered, “It is my opinion from the narrow holdings of these cases dealing with law compelling official forms for religious ceremonies, that that which originates from the individual and comes up instead of being originating from the government down to the individual is not affected. And it is permissible." Attorney General Walter E. Alessandroni of the Commonwealth of Pennsylvania said, “*** nor is there any restraint upon unorganized, private, personal prayer or Bible reading by pupils during the free moments of the day which is not a part of the school program and does not interfere with the school schedule." 15
It is just as unconstitutional to stop a voluntary prayer as it is to start a prayer that is voluntary. Leo Pfeffer says it most effectively, "The First Amendment has two parts. One part says Congress shall make no law respecting an establishment of religion and the other says no law prohibiting its free exercise. If a child felt it necessary to say a prayer before partaking of bread or milk or cookies and the state says you can't do that, that would be a violation of the free exercise clause and just as unconstitutional as the Supreme Court says in Murray it is for the teacher to say to the children that you will now say grace or read from the Bible." 16 Lawyer Kirby comments, "*** Some laws compel certain conduct, some laws forbid certain conduct, the great bulk of human activity is not touched upon by the law. It is neither compelled nor prohibited. The effect of the Supreme Court decision was to place prayer in the public schools in this third category where the law is neutral."
A third way to classify prayers is state or student. In interpreting the Constitution, the Supreme Court has always limited state prayers, never student prayers. Again, Leo Pfeffer says this effectively, "The First Amendment guarantees secure rights to the individual and restricts the state. They are against statism. They say to the state in the matter of religion-you keep your hands off." 18 And Professor Kirby, "Bible reading and prayer which are individually inspired rather than governmentally required, were not involved and are not affected by these decisions."
Assuming we've determined what prayers are permissible, the second "W," question needing a more complete answer is, "Why is prayer permissible in the classroom? One good reason to permit classroom prayer is because the denial of such permission inhibits religion." On this point Kauper notes, "There is merit to the argument that if the public schools are indifferent to the religious factor in the life of the Nation, they are thereby contributing to an official philosophy of secularism and, therefore, are not really neutral in religious matters." 20 Inhibition of religion is denied the state by the test set down by the U.S. Supreme Court in Abington, "The test may be stated as follows: What are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactments exceed the scope of legislative power as circumscribed by the Constitution."" In a separate opinion in Abington, Justice Potter Stewart observed, "For a compulsory state educational system so structures a child's life that if religious exercises are held to be an impermissible activity in
12 Letter from Norbert A. Schlei, Assistant U.S. Attorney General, Washington, D.C., Oct. 4, 1962.
13 United States Supreme Court, Considerations, Abington v. Schempp, 374 U.S. 203 (1963).
14 United State Congress, House Committee on the Judiciary, Op. Cit., p. 2136.
15 Walter E. Alessandroni, Pennsylvania Attorney General's Opinion, No. 260, Aug. 26, 1963.
18 United States Congress, House Committee on the Judiciary, Op. Cit., p. 924.
17 Ibid., p. 2136.
18 Ibid., p. 924.
19 Ibid., p. 2136.
20 Ibid., p. 1692.
United States Supreme Court, Abington v. Schempp, 374 U.S. 203 (1963).
schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion." " In the report of the Commission on Religion of the American Association of School Administrators the AASA charges schools, "* * * with the responsibility to provide an environment in which the practices and values that are rooted in the homes and churches can flourish." 23 The student who values and practices prayer must be permitted the opportunity to pray in the classroom. But, when?
Assuming we've determined what prayers are permissible, and why prayers are permissible, the third and final "W" question needing a more complete answer is, when is prayer permissible in the classroom? A period of meditation is emerging as a real possibility. George LaNoue, of the Center of Advanced Study of Bookings Institution and the Department of Religion Liberty of the National Council of Churches, points out why the word "meditation," "I use the word 'meditation' rather than the word 'prayer' because 'meditation' is a neutral act to be defined by the dictates of one's personal conscience, while 'prayer' is specifically religious even if silent." 24 Many religious organizations including the Union of Orthodox Jewish Congregations of America are favorable toward the concept of a meditation, “*** we would deem it appropriate and consistent with the First Amendment to afford the pupils of public schools the opportunity to set out on their days tasks with a moment of devotion. We therefore see no objection if the school day were to start with a period of meditation." 25 A period of meditation is not unconstitutional, constitutional law author Cooley says, "It was never intended by the Constitution that the government should be prohibited from recognizing religion-where it might be done without drawing any invidious distinction between different religious beliefs, organizations, or sects." 26
Countless comments from a variety of lawyers would indicate that a classroom period of meditation is not only legal, but desirable. In making recommendations as to what could be done in view of the court's decision, Law Professor Paul A. Freund, Harvard University, suggested, "The first, closest to the prayer itself, is the brief period of silent reverence or meditation, during which each pupil will recite to himself what his heart or his upbringing will prompt." The Dean of Rutgers Law School, Professor Willard Heckel said, "Now, I think clearly there is nothing unconstitutional about giving young people the opportunity, the time for silent prayer or meditation because here, again, this is part of the free exercise side of the coin." 28 From Professor Kauper, "The Supreme Court, it should be emphasized, has not held that there can be no prayer in the public schools. Nothing in the court's decision precludes school authorities from designating a period of silence for prayer and meditation or even for devotional reading of the Bible or any other book during this period."" In commenting about an official decision of his before the South Charleston Ministerial Associ ation, West Virginia Attorney General C. Donald Robertson said, "*** if the teacher were to say 'this is a time for quite and meditation,' this would not be banned."
Regulations at both the federal and state level regarding a meditation period have been considered. Federal legislation proposed by Senator Vance Hartke included the phrase, “* * * any public school system if it so chooses may provide time during the school day for prayerful meditation * * # 31 Congressman Cornelius E. Gallagher of New Jersey spoke in defense of his bill saying, "* my proposal is to set aside a few minutes each day at the beginning of the school day, a period that can be used for silent prayer or meditation." * At the state level Wisconsin is giving consideration to a bill which says in part. school may require all students to participate in opening exercises at the begin
23 American Association of School Administrators, "Religion in the Public Schools" (Chapel Books; Harper & Row. 1964), p. 28.
24 United States Congress, House Committee on the Judiciary, Op. Cit., p. 2443.
25 Union of Orthodox Jewish Congregations of America, 1963 National Convention Resolution No. 18.
2 T. M. Cooley, "Principles of Constitutional Law." pp. 224-225.
27 United States Congress, House Committee on the Judiciary, Op. Cit., p. 1656.
29 Ibid., p. 1990.
20 Ibid., p. 1692.
30 Speech of C. Donald Robertson, Attorney General, State of West Virginia, before the South Charleston, W. Va., Ministerial Association, 1964.
31 United States Congress, Senate Resolution No. 164, June 19, 1963.
33 United States Congress, House Committee on the Judiciary, Op. Cit., p. 2216.
ning of each school day and to meditate silently for approximately one minute; In Maryland the House of Delegates passed a bill which included, * all students at these schools to be present and participate in opening exercises on each morning of a school day and to meditate silently for approximately one moment; * * * 34 A period of meditation seems the best time when a school may permit what elements of prayer are permissible. A period of meditation is a way to pray.
Analogies are never accurate, usually confusing, seldom helpful. Recognizing full well these obstacles I feel compelled to try a few anyway. The Flag Salute, political views, and chapels on government property have elements common with classroom prayer. In a 1943 decision the U.S. Supreme Court reversed an earlier decision and ruled that students could not be compelled to salute the flag. But in protecting the personal right of a student not to give the pledge the court neither excused him from the exercise nor abolished the exercise itself. In the second analogy, as no student is denied political expression, neither should he be denied religious expression. History, civics, and government teachers do not eliminate political expressions from the classroom, but rather use those varied expressions as part of the teaching process. In the nature of things a place for political expression seems less of a problem in the classroom than religious expression-which is all the more reason a school should work to provide opportunity for the latter. For the third analogy a soldier and a student have at least one thing in common, they are compelled to be at a place not of their choosing. The state, recognizing the compulsion it exerts upon a soldier limits his opportunity for worship, provides both chapels and chaplains. In separate opinions in Abington both Justices Brennan and Stewart touch on this point. Brennan: "* ** Hostility, not neutrality would characterize the refusal to provide chaplains in places of worship for prisoners and soldiers cut off by the state from all civilian opportunities for public communion***"37 Stewart: "*** A lonely soldier stationed at some far away outpost could surely complain that a government which did not provide him the opportunity for pastorial guidance was affirmatively prohibiting the free exercise of his religion." 38 Because the amount of compulsion exerted on a student is far less than that exerted on a soldier the remedy need not be as dramatic. I don't suggest every classroom have a chapel, but a period of meditation seems justifiable. There is a Meditation Room in the United Nations Building and a Prayer Chapel in the Nation's Capitol. In each case the supposed users have less of a need for such a provision than the immature student confined to the classroom. School schedules would prevent an efficient use of a meditation room, but a period of meditation seems workable.
What little opposition there is to a period of meditation comes from two sources, those who say it is "too little" and those who say it is "too much." Those who say that a period of meditation is too limited an opportunity for religious expression suggest that any limitation is an infringement of the free exercise clause. However, even the church found it necessary to limit the scheduled time of prayer for the orderly conductance of its affairs. (When is the last time you witnessed a prayer offered during the middle of the sermon?) Some holding the "too little" view convey the idea the school should use its mechanism to compel students to pray, or at least make it uncomfortable for those who choose not to pray. A period of meditation, though not the ultimate, is certainly adequate. Those who say that a period of meditation is "too much" opportunity for religious expression claim that education should be void of all religion on the grounds of "establishment." But the fact that religious connotations do have a proper place in public education is indicated by all alert observers including the influential Educational Policies Commission of the National Education Association who say, "Education uninspired by moral and spiritual values is directionless." On the point of establishment, the Honorable Harold E. Achor, Judge, Supreme Court of Indiana, made the following observation of the Regents Prayer,
Wisconsin, Senate Bill No. 408, June 24, 1965.
24 Maryland House of Delegates Bill No. 80, Feb. 11, 1964.
United States Supreme Court, West Virginia v. Barnette, 319 U.S. 624 (1943). United States Supreme Court, Minersville School District v. Gobitis, 310 U.S. 586 (1940).
United States Supreme Court, Abington v. Schempp, 374, 203 (1963).
Education Policies Commission, "Moral and Spiritual Values in the Public Schools" (National Education Association, 1954), p. 6.
"To me it was no more logical to prohibit the children in New York from repeating this reverent but simple prayer because it contained the seeds of a state church than it would be to argue that no man be permitted to start a business in his garage because of the possibility he might monopolize the industry.” *
Early in 1966 Governor John A. Volpe of Massachusetts signed into law, Massachusetts Senate bill No. 734, which states in part, "At the commencement of the first class each day in all grades in all public schools the teacher in charge of the room in which such class is held shall announce that a period of silence not to exceed one minute in duration shall be observed for meditation, and during any such period silence shall be maintained and no activities engaged in."" Before signing the bill Governor Volpe requested and received an official opinion on its legality from Massachusetts Attorney General Edward W. Brooke. Mr. Brooke, now a candidate for the United States Senate, said in part, “* ** it is my opinion that Senate bill No. 734 does not conflict with the provisions of the First Amendment to the Constitution of the United States, ***." The period of "meditation" is a way to pray that's on the way to stay.
The school should not conduct its affairs so that those who do not want to pray are compelled to do so, neither, however, should the school conduct its affairs so that those who want to pray cannot do so. The responsibility of government in these delicate relationships is to guarantee, with equal vigor, both the right to pray as well as the right not to pray. Events of recent years have guaranteed the right of a student not to pray. But the pendulum has swung too far. The balance has been upset. It is now necessary to guarantee the right of a student to pray. To protect the rights of those who want to pray Congress should follow the lead of several states and as a minimum enact federal legislation requiring a moment of meditation in every classroom. Nothing short of a meditation period will be adequate. The student who wants to pray is entitled to that right-you must give it to him and protect it for him. A simple moment of meditation-lawyers approve it, parents want it, students welcome it, and educators need it to insure them against uninformed and disrupting charges. Thank you.
THE QUIET REVOLUTION
(By James V. Panoch)
There is a quiet revolution going on in public education today. It has an army of warriors with an arsenal of weapons all under able leadership. These "warriors" in education are not outsiders who come for special programs. They are not part-time workers. They are not personnel of off-campus activities. The warriors of the quiet revolution are in the classroom every day, all day, the most influential personalities in any classroom situation. They are teachers.
In the furor over the Court's decisions regarding prayer and Bible reading in the public schools, and in the actions and reactions of the frontal counterattacks that are evident today, we've lost sight of the fact that in spite of all, the classroom teacher controls the classroom situation. To be sure there are restrictive religious rules and regulations-some necessary, others not. And neither textbooks nor courses reflect adequately the depth and degree with which spiritual matters have affected human history. There is both an attitude and an atmosphere that tends to eliminate all mention and consideration of anything spiritual from the classroom. But in the face of all these obstacles there is still much the informed and dedicated teacher can do to include the spiritual dimension of life significantly, legally and properly into the everyday routine of every classroom situation. This is the Quiet Revolution.
The weapon of the Quiet Revolution are varied. A simple postage stamp is an effective bullet of penetration. The 1965, U.S. Christmas postage stamp bore a likeness of Gabriel. Now, why is Gabriel on a Christmas stamp and not a Fourth of July stamp? Some students may not know. It is the right, perhaps the obligation, of every teacher to see that students understand the significance of the design of a U. S. postage stamp. How does Gabriel relate to Christmas? Here is a sound educational avenue to tell the whole Christmas story properly. Another missile is the stamp issued at the 300th anniversary of the printing of the Gutenberg Bible. On still another postage stamp, George Washington is
40 Harold E. Achor, Letters to the Editor, Fort Wayne News-Sentinel, June 1964. 41 Massachusetts Senate Bill No. 734, 1966.
43 Edward W. Brooke, Massachusetts Attorney General's Opinion, Apr. 4, 1966.