About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

61 N.C. L. Rev. 141 (1982-1983)
School Prayer, Neutrality, and the Open Forum: Why We Don't Need a Constitutional Amendment

handle is hein.journals/nclr61 and id is 169 raw text is: SCHOOL PRAYER, NEUTRALITY, AND THE OPEN FORUM: WHY WE DON'T NEED A CONSTITUTIONAL AMENDMENT ARNOLD H. LOEWYt As theproposed constitutional amendment topermitprayer inpub- lic schools captures increasing national attention and debate, Professor Loewy argues that in the context of true state neutrality, schoolprayer does not violate the establishment clause. Noting that state sponsorshp (impermissible) is to be distinguishedfrom state neutrality (permissible), he contends that at least two methods ofproviding the opportunity to pray in school may be allowed A4 policy that grants open accessibility of classroom use to all student groups, religious or otherwise, would be constitutional. A policy that permits individually selectedphilosophical recitations by studentsprobably would be constitutional. Because these methodsfully accommodate any needforprayer, and because we do not need prayer which is any less voluntary than that arising from these methods, Professor Loewy concludes that the proposed school prayer amendment should not be added to the Constitution. No less an office holder than the President of the United States has deter- mined that this nation needs a constitutional amendment authorizing volun- tary school prayer.' This article contends that truly voluntary prayer already is permissible in school, and that any prayer which is less voluntary is neither necessary nor desirable.2 A state, school board, or teacher3 can allow prayer by establishing an open forum from which a student can say any of several t Professor of Law, The University of North Carolina at Chapel Hill- B.S. 1961, J.D. 1963, Boston University; LL.M. 1964, Harvard University. The author is indebted to Frederick S. Bar- bour, a second-year law student at the University of North Carolina for his assistance in the preparation of this article. 1. The proposed amendment provides: Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any state to participate in prayer. Letter from the Ameri- can Jewish Congress to Arnold H. Loewy (May 21, 1982). President Reagan was quoted as say- ing: The Amendment we'll propose will restore the right to pray . . . . Changing the Constitution is a mammoth task. It should never be easy. But in this case I believe we can restore a freedom that our Constitution was always meant to protect. N.Y. Times, May 7, 1982, at B10, col 1. 2. The term voluntary is of course a sliding-scale term. Very few choices are totally vol- untary or totally coerced. Sometimes the Supreme Court is willing to describe a choice as volun- tary in one context but involuntary in another. Compare Scbneckloth v. Bustamonte, 412 U.S. 218 (1973) (noncustodial search; knowledge of right to withhold consent immaterial), with Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation; instruction of rights required). Although the proposed constitutional amendment forbids making public prayer a require- ment, see supra note 1, the caveat is, however, a far cry from making the amendment truly volun- tary. Consider the following piece of precious overstatement by Art Buchwald: The pro-prayer people say that the constitutional amendment is voluntary and a child will not have to pray if he doesn't want to. The anti-prayer people maintain that

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most