So I do not think it is unconstitutional for that to happen, but it is desirable that it be done at the local level, not at the State level, in my opinion. Also, if you have a State prescribed prayer, I also object to it on one other ground, because it does not take into account the different religious mix within the State school districts.

For example, in Beverly Hills they may want to say one kind of prayer and in Barstow, CA, a different kind. One school district might prefer silent prayer, another school district vocal prayer. One school district may want to have prayer and another may not want to have it at all. So I think these decisions should be left to the local level. And I think I have enough faith in the judgment and the wisdom and the tolerance of the people at that level to make those judgments.

So I would argue that while the State has that right, I would eliminate it at least at the State level and leave that up to the local school boards.

Senator HATCH. How would you all respond to the charge that voluntary school prayer can never be truly voluntary because of peer pressure among school children?

Mr. DUGAN. Mr. Chairman, what we support is student initiated prayer, and that is voluntary in the most literal sense of the word. And in relation to the last question, we did testify-I personally did last July before the Senate Judiciary Committee, expressing concern about the State composing a common denominator kind of prayer. It was our suggestion at that time, and we stand by it, that the proposed constitutional amendment be modified to narrow it in this sense, that the State shall not influence the form or content of any prayer. We are talking about schools; we are not talking about chaplaincies of legislatures or the U.S. Congress, but in reference to schools particularly.

So we have expressed that kind of concern already. But we are supporting student-initiated prayer and other religious activity in our quest for equal access and the protection of religious free speech, and so on.

Mr. DINGMAN. Senator, two points: one is that we must remember that we are not talking about just classroom prayer. The phrase that is easy to get lost in the dialog is "and other religious activities," as we have described at some length. So let us not

Senator HATCH. Are you talking about equal access also?

Mr. DINGMAN. That is correct. That is correct. Now, I personally would not favor a prescribed prayer by anyone, whether it be county, State, Federal, anyone, because that to me seriously diminishes the value of the prayer. Now, I realize that we have a commonly used Lord's Prayer. That is fine. I have no objection for those who want to use it. But I would say that a mandated prayer would be totally inappropriate, and I would hope that it would be left to the local jurisdictions to decide how they are going to handle the matter.

Now, as you know better than I, the proposed constitutional amendment does not prescribe or proscribe. It simply says that the Constitution does not ban prayer. And, therefore, it would be left up to other levels of jurisdiction to decide how to handle it.

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And I would be happy to rely upon the wisdom of the local electorate to decide with their school board elections, et cetera, how they wish to handle it locally. And whether I choose the particular form that they would choose is irrelevant. If it reflects the local wishes, then I would yield to that. And certainly I have been in situations throughout my life where perhaps my viewpoint may have been a minority viewpoint, but that did not distort me, nor do I think that it distorts others to be in the presence of a viewpoint which they do not particularly share.

Senator HATCH. In dealing with the Lubbock situation, that issue, whether it be by constitutional amendment or by statute, which would you think would be the best approach: to require local school districts to provide equal access to religious and nonreligious extracurricular activities, or simply to make clear that nothing in the Constitution prohibits school districts from adopting this policy if they desire to adopt it?

Now, if this is a true issue of free exercise, should it be mandatory or should it be voluntary? If it is a true issue of free exercise, I would imagine that the policy ought to be mandatory.

On the other hand, if we are primarily concerned with local control, it probably ought to be optional. So I would like to hear your viewpoints with regard to that.

Mr. DUGAN. Mr. Chairman, might I ask if we could have permission for our counsel, Forest Montgomery, who is a member of the bar of the Supreme Court and who filed a friend of the court brief for NAE and the Christian Legal Society and some other organizations in the Lubbock case, to comment on this.

Senator HATCH. We would be glad to have that comment.

Mr. MONTGOMERY. Thank you, Mr. Chairman. I would say that believing as I do in local control of educational matters, that it ought to be left to the option of the States.

May I share with this committee a general impression I have of both the equal access hearings and the hearing on the President's initiative here today. Let me say that I share some of the concern of those who object to the President's amendment and the equal access approach. When I was in the sixth grade in elementary school, we used to say the Lord's Prayer. And looking back on it, I can see that that was very insensitive in so far as a Jewish student might have been present in the class. I do not even know. I was insensitive to that circumstance. So were the school officials.

I think we do need to be concerned about the sensitivity of the students. But it seems to me that those who object to the President's initiative, and the equal access proposed legislation of both Senators Denton and Hatfield, are saying to the Congress or saying to this committee-you are confronted with a problem that defies solution.

They are wholly negative in their testimony. I have heard every conceivable objection, but there is nothing constructive about their testimony. I do not mean to single out the testimony that you are going to hear from the bar of the city of New York, but I consider it symptomatic of the problem. In a statement of 53 pages and 141 footnotes, they devote one sentence to the Brandon and Lubbock cases and an accompanying footnote.

They do not even discuss Tinker against Des Moines, in which the Supreme Court recognized that high school students enjoy constitutional rights, including free speech and religious speech.

It just seems to me that American ingenuity would not be overly taxed if we were to work together to try and formulate some sort of relief for the present situation, because as matters stand today, a lot of students who would like to share with one another religious expression are being denied that opportunity.

If a school makes its facilities available for student groups-and I do not consider making physical facilities available the functional equivalent of state sponsorship-it seems to me that in that situation all groups, regardless of the ideas they are expressing, should have an equal opportunity.

And just as the political remarks of the student endorsing socialism or communism does not mean that those remarks are sponsored by the school, so to me it seems that both the parents and the students ought to be able to appreciate the difference between student-initiated activity and activities sponsored by a school.

Senator HATCH. Thank you so much.

Gentlemen, we appreciate you taking time to appear before the committee. We may submit some additional questions to you. We appreciate the excellent testimony you have given. And I appreciate personally the help you have given this subcommittee.

Our last panel is also made up of institutional representatives. We will begin with Mr. Dunn, James Dunn, the executive director of the Baptist Committee on Public Affairs. We will also hear from Ms. Gail Merel, representing the Bar Association of New York City. She obtained her doctorate at Harvard conducting research on the development of the first amendment. And our final witness, representing the National Education Association, which asked to testify this morning, is Bernie Freitag, a classroom teacher since 1961 and vice president of the association.

We are happy to have the three of you here, and we will begin with Mr. Dunn.

STATEMENTS OF JAMES M. DUNN, EXECUTIVE DIRECTOR, BAPTIST COMMITTEE ON PUBLIC AFFAIRS; GAIL MEREL, BAR ASSOCIATION OF NEW YORK CITY; AND BERNIE FREITAG, VICE PRESIDENT, NATIONAL EDUCATION ASSOCIATION

Mr. DUNN. Thank you, Mr. Chairman.

If it is possible, I would like for the full testimony, which has been submitted, to be entered into the record. And I will give you the 3-minute version.

Senator HATCH. Without objection, all of your prepared statements will be placed in the record.

Mr. DUNN. Thank you.

I am James Dunn, the executive director of the Baptist Joint Committee on Public Affairs. It is composed of representatives from eight national cooperating Baptist conventions and conferences in the United States with a current membership of over 27 million.

The committee seeks through a joint witness to apply the traditional Baptist concerns for religious liberty and proper church-state

relations. For example, in March of 1982, the Baptist Joint Committee reaffirmed its opposition to all constitutional amendments dealing with prayer in the public schools.

And as recently as last fall, 12 major Baptist conventions explicitly rejected the President's appeal for an amendment to the Constitution which would sanction religious exercise. Kentucky Baptists said "The Constitution as it now stands offers ample protection. Prayer in the public schools would face so many legal battles"-some of them have been suggested here today-"that it would lose its significance and vitality.'

Missouri Baptists expressed their opposition to "any effort of government to become involved in the writing of prayers or in the religious instruction of our children."

The Progressive National Baptist Convention, a black convention, said,

"Whereas the phrase legislating voluntary prayer in public schools is a linguistic contradiction and a political and a religious Trojan horse, this convention records its opposition to efforts to place prayer in the public schools by whatever means.

The American Baptist Churches in the United States reiterated their strong opposition to religious exercises in the schools. However, because of the congregational autonomy of Baptist churches and democratic policy of Baptists, we do not purport to speak for all 27 million Baptists.

The first false premise about the need for a prayer amendment

Senator HATCH. How many do you purport to speak for at this time?

Mr. DUNN. Well, at this moment, I speak for myself and 15 conventions which have taken strong action in oppostion

Senator HATCH. That would be about how many Baptists? I do not mean to interrupt you, but I just-——

Mr. DUNN. 20 million.

Senator HATCH. About 20 million.

Mr. DUNN. Yes, in those conventions that have taken strong action in opposition to the school prayer amendment.

Senator HATCH. I see, just so we know.

Mr. DUNN. The first false premise about the need for a prayer amendment is that the Supreme Court banned voluntary prayer. Prayer, to be true prayer, cannot be coerced. All true prayer is voluntary prayer.

The Court said government cannot write prayers or require students or teachers in public schools to be involved in oral or group prayers. Government may not sponsor religious exercises. The fact that students may be excused from those exercises does not eliminate the coercive element inherent in classes saying prayers.

Compulsory school attendance laws coercively provide all public schools with captive audiences. Mr. Justice Stevens was correct in calling public school prayers compelled ritual. Voluntary prayer was not at issue in the prayer cases and was not forbidden in the public schools. Prayer permits are not needed in this country.

The second false premise is that human beings, individually or through their government, have the power either to ban God from

a public building or to adopt an amendment that will permit God to enter a place from which man has banned him.

Such a premise is not only false, but also borders on blasphemy. There is little doubt as to the administration's intent about the Government's role. In a briefing paper distributed by the White House, the administration in a question and answer format asked, "Will state governments or local school boards be free to compose their own prayers if this amendment is ratified?"

The administration's answer, "Yes. If groups of people are to be permitted to pray, someone must have the power to determine the content of such prayer."

"Permitted to pray"? "Determine the content of prayers"? What is voluntary about that? Such phrases strike at the very heart of religious liberty. And amendment to put God back in the schools is unnecesary, unsound, and dangerous. We urge this committee to oppose any such proposal.

[The following was received for the record:]