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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
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

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