Mr. SCOTCH. Dr. Singer, I also extend the apologies of the committee that there is no Senator here. I assure you that the testimony in the printed record will be a permanent record, a very important one, and that your testimony and the testimony of other witnesses is no less important for the presence or absence of Senators in the room.

I do note that we still have a long list of witnesses. I know that you have come with prepared statements. All statements will be fully included in the record. If it is at all possible, I think we ought to try to adhere to the limit of the lights that control our lives during this hearing, so that everybody can get through.

Ms. Goldsmith?

STATEMENT OF JOANNE GOLDSMITH

Ms. GOLDSMITH. Thank you, sir.

I will simply say that my name is Joanne Goldsmith. I am president of the National Association of State Boards of Education. We represent education policymaking bodies in nearly all the States, the U.S. Trust Territories, and the District of Columbia, and I do wish to thank you for bearing with us this afternoon. You certainly feel our frustration, and we appreciate your staff's frustration for being put in this position.

Mr. SCOTCH. We are very, very interested in what you have to say.

Ms. GOLDSMITH. Thank you. I will try to read quickly.

I would like to make it clear at the outset that our association's general policy on the issue before us is that—and this is voted by our general membership at our annual meeting 2 years ago "It is inappropriate to allow government to organize, prescribe, or direct prayer in the public schools." The constitutional amendment under consideration clearly would permit public schools to both organize and prescribe a time of prayer. It would also allow volunteer student groups to use school facilities predominantly for religious purposes. We must, therefore, strongly oppose its adoption.

The issue, it should be remembered, is not whether any party is for or against religion. Our association deeply respects all religious faiths and the unquestioned right of individuals to follow their beliefs, whether in religious institutions, in their homes, or in their private moments anywhere.

Nor is the question whether the prayer or meditation that would be permissible under the proposed amendment is spoken or silent. We appreciate the attempt to avoid a common argument in school prayer disputes, that spoken prayer by students of a majority religion would exert undue pressure on other students of minority faiths. But the language in section 1 of the proposed amendment, we believe, still violates the overriding issue at stake, that government should not organize or prescribe a time for prayer in the public schools.

We need scarcely say that any individual student, whether somewhere in a school facility, or on a park bench, or anywhere else, may choose to engage in private, silent prayer. Our objection is to government organization and prescription of the moment.

We also oppose section 2 of the proposed amendment to the Constitution. In this instance, our most fundamental objection is that it is unnecessary and that it is unwise to fetter the Constitution with amendments or matters which are already being resolved satisfactorily by the courts and at the local school district level.

There are circumstances, the lower courts have found, in which students who wish to meet in school facilities for religious discussion may do so, and because I am not an attorney, I will not read those cites; you have heard them before today.

We will go on to say the courts have made it clear, in other words, that voluntary, student-initiated prayer groups using school facilities become suspect when such use is not incidental, but dominant. Indeed, so far as we are aware, in every case in which the courts have rejected so-called "neutral, extracurricular use policy," they have done so because they have found that they were adopted for that purpose and had the effect of advancing sectarian ends. We believe that this is a proper test and one which has permitted use of school facilities by religious groups under appropriate cir

cumstances.

The courts also have established other measures of appropriateness in this area: The age and impressionability of the student, the presence or absence of school personnel, the voluntary or involuntary nature of religious activity. But the foremost test is whether such use is predominantly for religious purposes. We agree with these standards and therefore, oppose the policy reflected in the proposed amendment which would allow them to be violated. We thank you.

Mr. SCOTCH. Thank you very much.

Mr. Dershowitz.

STATEMENT OF NAT DERSHOWITZ

Mr. DERSHOWITZ. Thank you, Mr. Scotch.

My name is Nat Dershowitz, and I am the general counsel to National PEARL, which is the National Coalition for Public Education and Religious Liberty. I am also the director of the Commission on Law and Social Action of the American Jewish Congress.

I would like to thank the committee for having me here, and I am testifying in my capacity as the general counsel for PEARL, of which the National Education Association is a member.

Before testifying, however, I think I would be remiss if I did not state my views as to the nature of these hearings. These hearings seem to be the only hearings dealing with an effort to amend the Constitution of the United States, the Bill of Rights, and the first amendment to the Bill of Rights. It appears as if these hearings are truncated hearings, scheduled to last a maximum of 1 day, at which we have had only a few Senators appearing. I find it extremely distressing that we are holding such short hearings, and second, that they are not receiving the attention that is necessary. To amend the Constitution of the United States, or to consider amending the Constitution of the United States, under these circumstances is quite disturbing.

What is even more distressing is that this is the first time we have ever had an amendment proposed to the U.S. Constitution to

modify not Supreme Court decisions, but lower court decisions. There are no direct Supreme Court decisions on-point. We are dealing here with section 1, with an amendment relating to silent meditation, a matter which has been before a number of the District Courts, but has never reached the U.S. Supreme Court; section 2, the "equal access" amendment, also would overturn decisions of the lower Federal courts, and not those of the U.S. Supreme Court.

So, for the first time in our 200-year history, we are holding hearings on amending the Bill of Rights to deal with lower court Federal decisions and not with decisions of the U.S. Supreme Court.

But putting aside procedure for a moment and putting aside for a moment the fact that this is not dealing with Supreme Court decisions, on the merits, we are opposed to both aspects of the proposed constitutional amendment. I previously testified in opposition to Senate Joint Resolution 73, and Joel Levy earlier today presented testimony in behalf of the American Jewish Congress, which we adopt in opposition to the silent meditation provision.

What I would like to do in the few minutes that I have is deal with the question of so-called equal access. We believe that those courts which have concluded that students should not be permitted to organize religious clubs on campuses have correctly interpreted the Constitution. I believe it is appropriate, in the moment or two that I have, to discuss just one aspect of that issue and that is the troublesome question which arise in these cases relating to teacher supervision of student religious clubs a practice not precluded by the Hatch proposal.

The presence of a teacher is not a neutral factor in the student's decision whether or not to participate in a particular club. In some cases, students will view a particular teacher as a role model and therefore, imitate him or her as much as possible. Conversely, a student who desires not to participate in a religious club may feel ill-at-ease in the sponsoring or supervising teacher's regular class because of that refusal. This Government thumb on the scale is constitutionally objectionable. The only decision to date which permits such clubs to function, namely, in Bender v. Williamsport Area School District, did not by any means adopt the so-called equality argument that is being advanced as the basis for section 2. The Court emphasized there that the religious clubs in question had disavowed any aid from the schools, such as the announcements over the loudspeaker, publicity on public bulletin boards, and the like The authority thus was limited to the use of the empty classroom and not, as the proposal will have it, equality in general. In addition, the proposal would probably require that some of the financial subsidies that go to the clubs also go to subsidize the religious schools.

What is at the heart of this amendment is the dissatisfaction with the special status accorded religion by the Constitution and by the relevant Supreme Court decisions. But this special status is what we view as so significant. On this central question we disagree with the sponsors of this amendment. Religion, the argument made in support of the amendment goes, should not be treated any differently than comparable secular activities, whether in terms of

funding, access or governmental benefit. The argument, of course, is not pressed to its logical extreme. Rather, the proponents of this amendment wish to see religion given the special benefits of the free exercise clause, but none of the disadvantages of the establishment clause.

Let me end by quoting Judge Adams of the third circuit, who held that "A rose cannot be had without the thorn." When one is dealing with the issues of religion, one has to balance the free exercise and the establishment clause, or at least try an reconcile the two. The proposal here does not seek appropriately to recognize the establishment clause problems that are inherent in its provisions. Thank you very much.

Mr. SCOTCH. Thank you.

Mr. BOWMAN. Ms. Goldsmith, you came here to speak on the silent prayer equal access bill, did you not?

Ms. GOLDSMITH. Yes.

Mr. BOWMAN. And your association is opposed to that?

Ms. GOLDSMITH. Yes.

Mr. BOWMAN. Does your association have a position on the President's amendment, Senate Joint Resolution 73?

Ms. GOLDSMITH. We would also oppose that, sir, as unnecessary. Mr. BOWMAN. Thank you.

Mr. SCOTCH. Thank you very much.

I should add-and for the panels that have preceded you, this applies, as well-that whether they appear or not, Senators may want to pose questions after the close of today's proceedings, and I hope that you would all be open to submitting answers for the record.

As I think earlier people at the podium have indicated, there is a big agenda today, just by coincidence, but they will be interested in hearing what you have to say, and I am certain that some of you will get questions posed in writing.

Ms. GOLDSMITH. We would be happy to answer them, on behalf of my association.

Dr. SINGER. Yes.

Mr. DERSHOWITZ. So would we, and thank you very much.

Mr SCOTCH. Thank you all very much.

The balance of the witnesses for this day's hearings are stated in order. I am going to invite you to come up in panels in the order in which you are listed, because I think it will be more convenient to approach it that way.

The next three witness organizations listed are the American Family Seminar, the B'nai B'rith Women, and the Christian Legal Society. Could I invite you all to come up at this time?

Again, your full written statements will be included in the record. I would ask you at this time to try to summarize your remarks if they are longer than the allotted time.

Again, let us proceed from right to left this time, and kindly identify yourselves for the record when you speak.

STATEMENT OF A PANEL, INCLUDING JAMES ALLMAN, ON BEHALF OF AMERICAN FAMILY LIFE SEMINARS, SAN DIEGO, CA; SAMUEL E. ERICSSON, CENTER FOR LAW AND RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY, AND RITA SALBERG, CHAIRMAN OF PUBLIC AFFAIRS, B’NAI B’RITH WOMEN

Mr. ALLMAN. My name is James Allman, and I am representing Dr. Tim Lahay, who is the president of Family Life Seminars, San Diego, CA, which represents over 100,000 families and 13,000 ministers throughout the Nation.

We would like to reflect upon the heritage that has been handed down to us. Such statements as given by William Penn in 1681, as, "If you are not governed by God, you will be ruled by tyrants." In 1787, Benjamin Franklin made this statement: "Here is my creed. I believe in one God, the creator of the universe, that He governs it by His providence, that He ought to be worshiped."

In the Constitutional Convention, Benjamin Franklin stated:

I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth, that God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?

In 1787, George Washington in his Thanksgiving Day proclamation stated:

Whereas it is the duty of all nations to acknowledge the providence of almighty God to obey His will, to be grateful for His benefits, and humbly to implore His protection, aid and favors, now, therefore, do I assign and recommend Thursday, the 26th day of November next that we may then all unite in rendering unto Him our sincere and humble thanks for His care and protection of the people of this country and for all the great and various favors which He has been pleased to confer upon

us.

John Quincy Adams, on July 4, 1821, said:

From the day of the Declaration, the American people were bound by the laws of God, which they all, and by the laws of the Gospel, which they nearly all acknowledged as the rules of their conduct.

Abraham Lincoln in 1861, in his farewell words in Springfield, IL on February 11, stated:

Unless the great God who assisted Washington shall be with me and aid me, I must fail, but if the same omnicient mind and mighty arm that directed and protected him shall guide and support me, I shall not fail; I shall succeed. Let us all pray that the God of our fathers may not forsake us.

And finally, in 1863, Abraham Lincoln in his Gettysburg Address stated that:

This Nation, under God, shall have a new birth of freedom, and that government of the people, by the people, and for the people shall not perish from this earth.

We favor the administration's proposal because we believe that America needs a prayer amendment to the Constitution to once again permit our schoolchildren who choose to do so to take time each day to acknowledge their dependence on God through prayer in much the same manner as did our Founding Fathers and as does the U.S. Supreme Court and Congress.

Ever since the 1962 Court decision to outlaw public prayer in public schools, a consistent secularization of our schools has taken place. This is discriminating against the God-fearing majority of our Nation's people so that in some communities, our young people

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