I am writing to express my views about S.815, the Religious Speech Protection Act of 1983. I am sorry that my schedule does not permit me to testify in person in favor of the bill on April 28-29. I trust that this brief written expression of my judgment about the bill can be entered into the record in lieu of my personal appearance.

I believe that S.815 is both constitutionally sound and Wise as a matter of policy. In $14-6 of my treatise, American Constitutional Law (1978), I advance an argument about the special importance of accommodating religious freedom even where some might argue that doing so raises problems under the Establishment Clause. The Supreme Court's opinion in Widmar v. Vincent, 454 U.S. 263, 272 n.11 (1981), cited that portion of my treatise in support of its conclusion that a state university that makes its facilities generally available for the activities of student groups does not violate the Establishment Clause when it permits such groups to use University buildings for purposes of religious worship or teaching but, on the contrary, violates the Free Speech Clause when it discriminates against a meeting of students on the basis of the religious speech or worship that will take place at such a meeting.

Notwithstanding the additional problems that might arise when religious meetings are conducted on the campus of a public secondary school, I believe that the same conclusion should follow in that context, provided only that the student meetings at issue are not state-initiated, school-sponsored, or teacherled in any way that might lead to direct or indirect coercion of any student. The Supreme Court's failure to address this issue subsequent to Widmar v. Vincent should not be confused with a contrary view on the part of the Court.

I believe that S.815 properly reflects this constitutional position. It would prevent public secondary schools that receive federal aid from discriminating against any student meeting during non-instructional periods "on the basis of the religious content of the speech at such meeting" so long as the meeting is voluntary and otherwise lawful. The Constitution, in my view, requires as much; surely it is appropriate for Congress to insist that schools receiving funds from the Federal Treasury comply with the First Amendment. Moreover, S.815 carefully provides that nothing therein may be construed to permit any level of government either to "influence the form or content of any prayer or other religious activity," or to "require any person to participate in prayer or other religious activity." This provision guarantees that, should "voluntary" prayer be organized in such a way as to make non

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participants feel ostracized or otherwise suffer by virtue of their abstention, their rights and those of their parents to judicial relief against the practice under the Free Exercise Clause would be unaffected by passage of this bill. Thus, no legitimate objection to S.815 can be based on the values of pluralism and freedom. If this bill is to be opposed, it must be opposed solely on the ground that even voluntary prayer may not take place in our public schools a proposition that President Reagan has incorrectly attributed to the Supreme Court, but one that I believe no thoughtful student of the Constitution could possibly endorse.

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For these reasons, I believe S.815 should be adopted.

MARK O. HATFIELD
OREGON

United States Senate

WASHINGTON, D.C.

June 9, 1983

Dear Colleague:

A number of us, with divergent views about S.J. Res. 73, the
proposed constitutional amendment concerning prayer in public
schools, have found common agreement relating to an area of great
confusion and misunderstanding among secondary school
administrators and faculty, as well as among students and
parents. We agree with the principles of the U.S. Supreme Court
decision in Widmar v. Vincent, 454 U.S. 263 (1981), that where
various student groups are allowed to meet on their own
initiative during non-instructional time periods, it is wrong to
censor their speech to prohibit prayer or religious discussion.
Although Widmar arose in a public university, lower federal
courts have refused to apply this principle to public high
schools. Unfortunately, a growing number of federal court
decisions have singled out student initiated meetings as
violative of the First Amendment to the U.S. Constitution.

Let us cite just two examples:

1.

2.

At Guilderland High School in New York, Christian students sought and have been denied the right to meet before classes for prayer. The meetings were voluntary, required no school announcements or sponsorship. A federal district court and Appeals Court have upheld the school board's refusal to allow the group to meet. Brandon v. Guilderland Control School District, 635 F.2d. 971 (2d Cir. 1980), Cert. denied, 102 S.Ct. 970 (1981).

In Lubbock, Texas, the school board drafted a careful policy
that accommodated student-initiated religious activity on an
equal basis with other student groups in the use of school
facilities for meetings before and after school. The United
States Court of Appeals for the 5th Circuit struck down this
school board policy and forced a total ban of voluntary,
student-initiated religious activity. Lubbock Civil
Liberties Union v. Lubbock Independent School District, 669
F.2d. 1308 (5th Cir. 1982), Cert. denied, 51 U.S.L.W. 3533
(January 18, 1983).

Testimony on April 28, 1983, before the Senate Judiciary
Committee established the fact that there are many instances
across the nation in which groups of students meeting quietly
outside of classroom hours for religious discussions were
required to discontinue their meetings because of uncertainty and
apprehension about lower court decisions and possible litigation.
These federal court decisions have had a chilling effect which
has resulted in confusion, inconsistency and arbitrariness in
attempting to comply with the Constitution's protection against
the establishment of religion.

On March 15, 1983, we introduced S. 815, which establishes a Judicial remedy for high school students who are aggrieved by a discriminatory policy that is formulated and carried out by public schools which receive federal financial assistance. The

bill is a straight forward attempt to apply the Widmar rule of equal access to lawful student groups in secondary schools.

As safeguards, the bill:

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would prohibit officials from influencing the form or content of any religious activity, or allowing any coercion of participation.

protects the discretionary role of school administrators to
allow non-disruptive student meetings on an equal access
basis, or to refuse access to all student groups provided the
policy is content-neutral.

will not require opening the campus to outside groups since it is student-initiated meetings which have the equal right of access under the Widmar decision.

Distinguished constitutional law experts, including Professor Laurence Tribe of Harvard Law School, Dean Terrance Sandalow of the University of Michigan Law School, Professor Walter Dellinger of Duke University Law School, and others, have gone on record that the principle of Widmar, though it was expressed in a college-level case, appropriately applies to secondary schools. Most recently, in Bender v. Williamsport Area Schools, the U.S. District Court for the Middle District of Pennsylvania, held that a student initiated religious group had the right to meet during a school activity period under the Constitution's protection of freedom of speech. Although this case may be the beginning of a change in direction by our federal courts, existing federal appellate precedents continue to require school districts in at least two circuits to rule against student-initiated religious meetings.

We ask that you join us in co-sponsoring S. 815. If you wish to join in this effort please contact me or Randy Sterns or Craig Higgins of my staff at 224-3753.