I think at least part of the public senses the same danger that I am indicating. The supporters of the President's amendment like to cite polls that show 75 to 80 percent of the public favors a restoration of prayer in the public schools But when the questions are phrased more specifically to include words like "organized group prayers" or "organized vocal prayers," the support drops to the low to midsixties. Yes, that is still a majority, but it is not the kind of overwhelming consensus that is usually associated with an amendment, and I think the 10 to 15 percent who shift with the question's wording are trying to tell us something that is worth hearing.

Part Four. Some supporters of the President's amendment have opposed silent prayer because they believe vocal prayer would be more meaningful. I believe the reverse is true. Vocal prayer, as I said, must either be pablum or meaningful. If it is pablum, who needs it? If it is meaningful, some will be left out. To those who say there is no harm in being left out, and learning about someone else's religion, and taking a turn on another day, I say this confuses the purpose of having an amendment. The idea is to restore prayer, not to run classes in toleration or comparative religion. Comparative religion is permitted now. The aim should be, and I understand the aim of the amendment to be, to set time aside for prayer or meditation for every student every day, not to listen 4 days and pray 1.

Silent prayer is an important part of almost every religion. In my own Jewish religion, the lengthy Amidah, or silent prayer, comes in the middle of every service, at least three times a day. Similarly, many candidates with whom I have traveled stop several times a day, wherever they are, for silent devotion. These periods of silence are times set aside for intense personal communion with God. Their content, and their beauty makes the watered-down lip service of public recitation seem pale by comparison.

What about those students who do not know how to pray on their own, it may be asked? Well, I answer first that it is not the public schools' job to teach them. I would also say that students will have a chance for more meaningful religious leadership with silent than with vocal prayer. Every Sunday school could hold discussions on daily prayers for the coming week. There is no way the clergy could play anything approaching such a role with vocal prayer.

Finally, what about those who say, as some evangelicals have said to me, that they have a religious obligation to proclaim the name of Christ aloud, which silent prayer does not satisfy? To them, I say fine, but not in a classroom. Vocal and silent prayer in most faiths serve different religious purposes. Silent prayer is personal; it is for personal communion with God. Vocal prayer, on the other hand, is communal or group prayer. The public school is not a religious community, and it should not be. As a political community, we must be open to those who disagree on matters of faith; that is a bedrock principle of the constitutional regime.

Finally, what about whether the amendment is necessary? Some argue that it is not because the Supreme Court has never ruled on the issue.

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I think the neutrality rule is and should be consistent with silent prayer or meditation. However, many lower courts disagree, and who knows what the Supreme Court might say, or if it would say anything at all?

The subcommittee amendment does not represent present law. The lower court rulings on silent prayer have not been as favorable as some previous witnesses have said. As Professor Dellinger said, adding the word "prayer" is the issue. The score now, if I am not mistaken, is one 17-year-decision in favor, and four against. The other decisions that are counted in favor usually involve silent meditation statutes that do not mention the word "prayer," and the against rulings are much more recent.

We also know that there are 18 States with silent prayer or meditation statutes, but very few school boards have implemented them. I cannot help but believe that this is partly because of the way the school boards themselves read the Court's doctrine, and partly because of the pressures being placed on them by local civil liberties organizations.

As long as this situation exists, people who want some kind of silent prayer or meditation exercise are being denied an opportunity that they should have. It is perfectly appropriate for this body to affirm a right whose exercise is being chilled in large part by the courts. At the same time, it is appropriate for this body to declare loudly that one can honor and reserve a place for religion without establishing a religion. Yes; you could wait for the unpredictable Supreme Court, but you might have to wait for a lifetime.

The CHAIRMAN. I would like to ask this question. As I understand, you are opposed to the President's proposal.

Professor MALBIN. Yes.

The CHAIRMAN. Are you opposed to the alternative that the subcommittee is considering, along with the President's proposal? Professor MALBIN. No.

The CHAIRMAN. Thank you.

Professor MALBIN. By the way, there are one or two technical things you might want to do to answer some points that the Deputy Attorney General raised. He said something about the subcommittee amendment raising problems for commencement exercises, for invocations or the use of chaplains I am sure that is not the intention. I do not read it that way. I think you can take care of that by amending the second sentence to run parallel to the first, so that both sentences include the words "in public education," rather than having "in public schools" in the first and nothing in the second. I think that technical change would take care of the argument that the Deputy Attorney General made.

The CHAIRMAN. Thank you very much.

Professor Bender, we will be very pleased to hear from you now.

STATEMENT OF PROF. PAUL BENDER

Professor BENDER. Mr. Chairman, thank you very much.

I do not have a written statement. I am afraid that I was asked to come down here just a few days ago and did not have time to prepare one. T to be very brief.

I testified before the subcommittee earlier on the President's proposal, Senate Joint Resolution 73. My views then were, and they still are, that that is an unwise proposal, for two basic reasons. First, there is no provision in that proposal that would limit in any way the kind of prayer that could be officially adopted. You could have the most narrowly sectarian or denominational prayer adopted by a school district, a particular school or a State under the President's proposal. I think that it is just a terrible idea to permit extremely narrow sectarian prayer in the public schools. Even if you disagree, as I do not, but even if you disagree with the Supreme Court's decisions in Engel and Abington, those cases dealt with the Lord's Prayer and similarly widely recognized and relatively nonsectarian prayers. To adopt a constitutional amendment that would permit a school, a school district, a school board, or a State or city to adopt very narrow sectarian prayers, is offensive to all of our constitutional traditions.

The second reason for my disagreement with Senate Joint Resolution 73 has been mentioned earlier today. That reason comes under the heading of what the Supreme Court has referred to in its cases as excessive "entanglement" between government and religion. If we were to amend the Constitution to permit schools, school districts, or localities or States to adopt official prayers, imagine the kind of political debate that would go on with regard to the particular prayer to be adopted. It is difficult to imagine any more inappropriate entanglement between government and religion than would take place in those debates.

So I think the President's proposal, Senate Joint Resolution 73, is a very unwise one, and I oppose it.

The Hatch proposal, Senate Joint Resolution "blank", which would deal with silent prayer and equal access, does not incorporate the evils that I see in Senate Joint Resolution 73. Nevertheless, I will give you my views now as to why I do not think you ought to recommend that proposal either.

With regard to the first section of Senate Joint Resolution "blank," having to do with silent prayer, I am not sure at the outset what that section means. Basically, if it means one of the things that I think it might mean, I am opposed to it; if it has a different meaning, I think it is unnecessary. Let me talk about the first possible meaning first.

When Senate Joint Resolution "blank" states that "Nothing in this Constitution shall be construed to prohibit individual or group silent prayer," I ask myself what "group silent prayer" means. How can people silently pray as a group? The only way I can imagine for that to be done is if a period were set aside only for prayer, that is, if a school day were to start by the teacher saying, "Now, children, in the next minute"-or 2, or 5-"we shall all silently pray." That, I think might be described as "group silent prayer." If that is what is intended by this proposal, I think that the proposal is unwise, because it tells the children that they are expected to pray. As I think we all recognize, some children may properly choose not to do that; in all events it should not be official policy that children pray. The matter should be left to individual choice. So if that is what it means, I think it is a poor idea. On the other hand, it might mean, and I hope it means, not that a moment shall

I think the neutrality rule is and should be consistent with silent prayer or meditation. However, many lower courts disagree, and who knows what the Supreme Court might say, or if it would say anything at all?

The subcommittee amendment does not represent present law. The lower court rulings on silent prayer have not been as favorable as some previous witnesses have said. As Professor Dellinger said, adding the word "prayer" is the issue. The score now, if I am not mistaken, is one 17-year-decision in favor, and four against. The other decisions that are counted in favor usually involve silent meditation statutes that do not mention the word "prayer," and the against rulings are much more recent.

We also know that there are 18 States with silent prayer or meditation statutes, but very few school boards have implemented them. I cannot help but believe that this is partly because of the way the school boards themselves read the Court's doctrine, and partly because of the pressures being placed on them by local civil liberties organizations.

As long as this situation exists, people who want some kind of silent prayer or meditation exercise are being denied an opportunity that they should have. It is perfectly appropriate for this body to affirm a right whose exercise is being chilled in large part by the courts. At the same time, it is appropriate for this body to declare loudly that one can honor and reserve a place for religion without establishing a religion. Yes; you could wait for the unpredictable Supreme Court, but you might have to wait for a lifetime.

The CHAIRMAN. I would like to ask this question. As I understand, you are opposed to the President's proposal.

Professor MALBIN. Yes.

The CHAIRMAN. Are you opposed to the alternative that the subcommittee is considering, along with the President's proposal? Professor MALBIN. NO.

The CHAIRMAN. Thank you.

Professor MALBIN. By the way, there are one or two technical things you might want to do to answer some points that the Deputy Attorney General raised. He said something about the subcommittee amendment raising problems for commencement exercises, for invocations or the use of chaplains I am sure that is not the intention. I do not read it that way. I think you can take care of that by amending the second sentence to run parallel to the first, so that both sentences include the words "in public education," rather than having "in public schools" in the first and nothing in the second. I think that technical change would take care of the argument that the Deputy Attorney General made.

The CHAIRMAN. Thank you very much.

Professor Bender, we will be very pleased to hear from you now.

STATEMENT OF PROF. PAUL BENDER

Professor BENDER. Mr. Chairman, thank you very much.

I do not have a written statement. I am afraid that I was asked to come down here just a few days ago and did not have time to prepare one. I will try to be very brief.

I testified before the subcommittee earlier on the President's proposal, Senate Joint Resolution 73. My views then were, and they still are, that that is an unwise proposal, for two basic reasons. First, there is no provision in that proposal that would limit in any way the kind of prayer that could be officially adopted. You could have the most narrowly sectarian or denominational prayer adopted by a school district, a particular school or a State under the President's proposal. I think that it is just a terrible idea to permit extremely narrow sectarian prayer in the public schools. Even if you disagree, as I do not, but even if you disagree with the Supreme Court's decisions in Engel and Abington, those cases dealt with the Lord's Prayer and similarly widely recognized and relatively nonsectarian prayers. To adopt a constitutional amendment that would permit a school, a school district, a school board, or a State or city to adopt very narrow sectarian prayers, is offensive to all of our constitutional traditions.

The second reason for my disagreement with Senate Joint Resolution 73 has been mentioned earlier today. That reason comes under the heading of what the Supreme Court has referred to in its cases as excessive "entanglement" between government and religion. If we were to amend the Constitution to permit schools, school districts, or localities or States to adopt official prayers, imagine the kind of political debate that would go on with regard to the particular prayer to be adopted. It is difficult to imagine any more inappropriate entanglement between government and religion than would take place in those debates.

So I think the President's proposal, Senate Joint Resolution 73, is a very unwise one, and I oppose it.

The Hatch proposal, Senate Joint Resolution "blank", which would deal with silent prayer and equal access, does not incorporate the evils that I see in Senate Joint Resolution 73. Nevertheless, I will give you my views now as to why I do not think you ought to recommend that proposal either.

With regard to the first section of Senate Joint Resolution "blank," having to do with silent prayer, I am not sure at the outset what that section means. Basically, if it means one of the things that I think it might mean, I am opposed to it; if it has a different meaning, I think it is unnecessary. Let me talk about the first possible meaning first.

When Senate Joint Resolution "blank" states that "Nothing in this Constitution shall be construed to prohibit individual or group silent prayer," I ask myself what "group silent prayer" means. How can people silently pray as a group? The only way I can imagine for that to be done is if a period were set aside only for prayer, that is, if a school day were to start by the teacher saying, "Now, children, in the next minute"-or 2, or 5-"we shall all silently pray." That, I think might be described as "group silent prayer." If that is what is intended by this proposal, I think that the proposal is unwise, because it tells the children that they are expected to pray. As I think we all recognize, some children may properly choose not to do that; in all events it should not be official policy that children pray. The matter should be left to individual choice. So if that is what it means, I think it is a poor idea. On the other hand, it might mean, and I hope it means, not that a moment shall