81 Nw. U. L. Rev. 1 (1986-1987)
Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers

handle is hein.journals/illlr81 and id is 9 raw text is: Copyright 1987 by Northwestern University, School of Law        Printed in U.S.A.
Northwestern University Law Review                                Vol. 81, No. I
NORTHWESTERN UNIVERSITY
LAW REVIEW
VOLUME 81                       FALL 1986                    NUMBER 1
EQUAL ACCESS AND MOMENTS OF SILENCE:
THE EQUAL STATUS OF RELIGIOUS
SPEECH BY PRIVATE SPEAKERS
Douglas Laycock*
The role of religion in the public schools is one of the most contro-
versial issues of our time. Historically, the public schools openly taught
Protestant Christianity, and many opened the day with prayers, Bible
readings, or both.1 In Engel v. Vital2 and Abington School District v.
Schempp,3 the Supreme Court held these practices unconstitutional. En-
gel and Schempp triggered a new round in this long-running debate. A
quarter century later, the debate is as intense as ever.
Opponents of the Supreme Court's school prayer decisions have pro-
ceeded at two levels. They have denied the legitimacy of the school
prayer decisions and the underlying premise that government must be
neutral toward religion. I hope eventually to defend the requirement of
strict government neutrality against the recurring claim that the estab-
lishment clause4 permits nonpreferential support for religion. But that
must await a subsequent article.5 This Article will assume that the
Supreme Court was right when it said that the Constitution requires the
* Fulbright & Jaworski Professor of Law, The University of Texas at Austin. I am grateful to
Dean Kelley, Sanford Levinson, L.A. Powe, David Rabban, Teresa Sullivan, Jay Westbrook,
Charles Alan Wright, and Mark Yudof for helpful comments on earlier drafts, and to Fred Garrett
for research assistance.
I See L. CREMIN, THE AMERICAN COMMON SCHOOL 66-70 (1951); D. RAVITCH, THE GREAT
SCHOOL WARS, NEw YORK CITY, 1805-1973, at 18-19, 34-35, 47 (1974); 1 A. STOKES, CHURCH
AND STATE IN THE UNITED STATES 824-27 (1950).
2 370 U.S. 421 (1962).
3 374 U.S. 203 (1963).
4 U.S. CONSr. amend. I.
5 For the historical part of that argument, see Laycock, Non-Preferential Aid to Religion: A
False Claim About Original Intent, 27 WM. & MARY L. REV. 873 (1986) (forthcoming).

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