Periods of meditation can also provide a time for voluntary prayer
At the end of 1965, three and one-half years after the “Prayer Decision” (Engel v. Vitale), the United States Supreme Court added an exclamation point to that decision by refusing to review a lower-court case banning classroom prayer (Stein v. Oshinsky). However, a correct reading of the court’s intentions shows that not all prayer in the public school is illegal.
Within weeks after the 1962 prayer case, Mr. Justice Clark indicated that he and his colleagues did not intend to ban all prayer. Speaking in San Francisco, he quoted approvingly these words: “Most commentators suggested that the court had outlawed religious observance in public schools when, in fact, the court did nothing of the kind” and also remarked, “As one commentator said, the trouble is that the court like the complaint of the wife ‘is never understood.’ ”
Moreover, the office of the United States Attorney General, in attempting to interpret the court action to citizens on behalf of the President, has repeatedly made such statements as, “You will note that the decision in the Engel case in no way restricts the right of individuals to pray,” or, “These decisions do not in any way restrict the right of private individuals or groups to pray, but are aimed at the use of the power of government to channel religious observances into prescribed official forms” (letters from Norbert A. Schlei, Assistant United States Attorney General, Oct. 4, 1962, and July 13, 1963).
Among the questions regarding prayer in the public school that need more complete answers are these: (1) What is permissible? (2) Why is it permissible? (3) When is it permissible?
Prayer must be classified before one attempts to decide which kinds are permissible in public education. One simple classification separates silent from oral prayer. Repeatedly the Supreme Court has emphasized the distinction between the freedom to believe and the freedom to act. The freedom to believe, it has said, is absolute, but in the very nature of things the freedom to act cannot be. Following this logic, we may say that oral prayer comes under the freedom to act and must of necessity carry some limitations, whereas silent prayer comes under the freedom to believe and should not—in fact cannot—carry any limitations. As Paul W. Bruton of the University of Pennsylvania Law School has said, “No one has been forbidden to engage in prayer in a public school if he wishes to do so as a purely individual activity” (“The Law of Church and State,” speech at Pennsylvania Conference on Church and State, Oct. 13, 1965). Silent prayer is permissible.
Moreover, it may be that under certain circumstances even oral prayer is permissible. Robert Matthews, Attorney General of Kentucky, declared in an official opinion, “In our opinion, nothing objectionable would be found in a student, during a period of meditation, voluntarily or spontaneously saying a prayer, silent or vocal” (Kentucky Attorney General’s Opinion, OAG 64–111, Feb. 7, 1964).
During the many days of hearings on school prayers before the Committee on Judiciary of the House of Representatives, Committee Chairman Emanuel Celler pointed out, “I say that the teacher, consistent with this decision, could say to the children, ‘You are now permitted for a period of two minutes to recite to yourselves if you wish, a prayer.’ They could do it out loud or they could do it meditatively without saying a word” (United States, Congress, House, Committee on the Judiciary, Hearings on Proposed Amendments to the Constitution Relating to Prayers and Bible reading in the Public School, 88th Cong., 2nd Sess., 1964, p. 2050).
To one recognized authority on church-state relations, Leo Pfeffer, it is obvious that prayer has not been forbidden. He noted, “There is not one word in any decision of the Supreme Court including Murray, Engel, Zorach, or McCollum, or any state court decision which can, to any extent, be interpreted as forbidding children to pray or to read the Bible in the public schools” (ibid., p. 923).
“Voluntary Prayer”
Another way to classify prayer in this context is through the subtle distinction between “voluntary prayer” and “prayer that is voluntary.” This distinction, though it may seem strained, is really the heart of the matter. By “voluntary prayer” is meant prayer in which the student determines what is said, when it is said, where it is said, and how it is said. By “prayer that is voluntary” is meant prayer determined by the state, acting through the school; the “voluntary” aspect is that the student can choose whether to participate. Repeatedly the Supreme Court has ruled that the second type, “prayer that is voluntary,” is illegal. However, it has never ruled on the first type, “voluntary prayer.”
In the New York case, Stein v. Oshinsky, that the Supreme Court refused to review last year, two prayers suggested as voluntary were barred: “God is great, God is good, and we thank Him for our food; Amen,” and “Thank you for the world so sweet; thank you for the food we eat; thank you for the birds that sing; thank you, God, for everything.”
That the court did not in Engel v. Vitale rule on “voluntary prayer” seems to be borne out by a statement from the United States Attorney General’s office on behalf of the President concerning school prayers, “The court did not rule on the question of whether the practice of saying school prayers which are not officially sanctioned by public school officials, violates the Constitution” (letter from Norbert A. Schlei, Assistant United States Attorney General, Oct. 4, 1962).
During hearings on the Bible-reading decision, Mr. Justice Black noted, “Students have the right to practice prayer and read the Bible. They do not have the right to the aid of the state in that exercise” (United States Supreme Court, Considerations, Abington v. Schempp, 374 U. S. 203 [1963]). The first part of his statement indicates that he would approve “voluntary prayer,” and the second part that he disapproves of the state’s organizing “voluntary prayer” so as to change it to a “prayer that is voluntary.”
The views of this distinguished jurist have support among professors of law and attorneys general. James C. Kirby, professor of law at Vanderbilt University, when asked if non-prescribed prayers should be permitted in public schools, answered, “It is my opinion from the narrow holdings of these cases dealing with law compelling official forms for religious ceremonies, that that which originates from the individual … is not affected. And it is permissible” (United States, Congress, House, Committee on the Judiciary, op. cit., p. 2136). Attorney General Walter E. Alessandroni of the Commonwealth of Pennsylvania said, “… nor is there any restraint upon unorganized, private, personal prayer or Bible reading by pupils during the free moments of the day which is not a part of the school program and does not interfere with the school schedule” (Pennsylvania Attorney General’s Opinion, No. 260, Aug. 26, 1963).
It is just as unconstitutional to stop a “voluntary prayer” as it is to start a “prayer that is voluntary.” Leo Pfeffer says it most effectively: “The First Amendment has two parts. One part says Congress shall make no law respecting an establishment of religion and the other says no law prohibiting its free exercise. If a child felt it necessary to say a prayer before partaking of bread or milk or cookies and the state says you can’t do that, that would be a violation of the free exercise clause and just as unconstitutional as the Supreme Court says in Murray it is for the teacher to say to the children that you will now say grace or read from the Bible” (United States, Congress, House, Committee on the Judiciary, op. cit., p. 924). And Professor Kirby comments, “… some laws compel certain conduct, some laws forbid certain conduct. The great bulk of human activity is not touched upon by the law. It is neither compelled nor prohibited. The effect of the Supreme Court decision was to place prayer in the public schools in this third category where the law is neutral” (ibid., p. 2136).
State Purely Neutral
The Constitution limits the state but not the individual. In interpreting the Constitution, the Supreme Court has limited state-prescribed prayer (“prayer that is voluntary”), not student prayer (“voluntary prayer”).
Assuming that the question of what prayers are permissible has been clarified, the next question is, “Why is prayer permissible in the classroom?” One good reason for permitting classroom prayer is that the denial of such permission inhibits religion. On this point Professor Paul G. Kauper of the University of Michigan Law School notes, “There is merit to the argument that if the public schools are indifferent to the religious factor in the life of the Nation, they are thereby contributing to an official philosophy of secularism and, therefore, are not really neutral in religious matters” (ibid., p. 1692).
Inhibiting religion is denied the state by the test set down by the Supreme Court in the Schempp case: “The test may be stated as follows: what are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactments exceed the scope of legislative power as circumscribed by the Constitution” (United States Supreme Court, Abington v. Schempp, 374, U. S. 203 [1963]).
In a separate opinion in that case, Mr. Justice Stewart observed, “For a compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion” (ibid.).
The report of the Commission on Religion in the Public Schools of the American Association of School Administrators charges schools “with the responsibility to provide an environment in which the practices and values that are rooted in the homes and churches can flourish” (Religion in the Public Schools, Harper & Row, 1964, p. 28).
It is clear, therefore, that the student who values and practices prayer must be permitted the opportunity to pray in the classroom. But when?
Meditation Period
The idea of a period of meditation is emerging as a real possibility. George LaNoue, of the Center of Advanced Study of Brookings Institution and the Department of Religious Liberty of the National Council of Churches, points out the reason for using the word “meditation”: “… meditation is a neutral act to be defined by the dictates of one’s personal conscience, while prayer is specifically religious even if silent” (United States, Congress, House, Committee on the Judiciary, op. cit., p. 1656).
The Union of Orthodox Jewish Congregations of America has expressed favor toward the idea of a period of meditation: “We would deem it appropriate and consistent with the first Amendment to afford the pupils of public schools the opportunity to set out on their day’s tasks with a moment of devotion. We therefore see no objection if the school day were to start with a period of meditation” (Union of Orthodox Jewish Congregations of America, 1963 National Convention Resolution No. 18). A period of meditation is not unconstitutional, says T. M. Cooley: “It was never intended by the Constitution that the government should be prohibited from recognizing religion—where it might be done without drawing any invidious distinction between different religious beliefs, organizations, or sects” (Principles of Constitutional Law, pp. 224, 225).
A multitude of comments from many lawyers indicates that a classroom period of meditation is not only legal but also desirable. In making recommendations about what could be done in view of the court’s decision, Professor Paul A. Freund of the Harvard University Law School suggested, “The first, closest to the prayer itself, is the brief period of silent reverence or meditation, during which each pupil will recite to himself what his heart or his upbringing will prompt” (United States, Congress, House, Committee on the Judiciary, op. cit., p. 1656).
Professor Willard Heckel, dean of the Rutgers University Law School, said, “Now, I think clearly there is nothing unconstitutional about giving young people the opportunity, the time for silent prayer or meditation because here, again, this is part of the free exercise side of the coin” (ibid., p. 1990).
And Professor Paul G. Kauper of the University of Michigan Law School has declared, “The Supreme Court, it should be emphasized, has not held that there can be no prayer in the public schools. Nothing in the court’s decision precludes school authorities from designating a period of silence for prayer and meditation or even for devotional reading of the Bible or any other book during this period” (ibid., p. 1692).
The saluting of the flag and the provision of chapels on government property have elements in common with classroom prayer. In a 1943 decision (West Virginia v. Barnette, 319 U. S. 624), the United States Supreme Court reversed an earlier decision (Minersville School District v. Gobitis, 310 U. S. 586, [1940]) and ruled that students could not be compelled to salute the flag. But in protecting the personal right of a student not to repeat the pledge, the court neither excused him from the exercise nor abolished the exercise itself.
A soldier and a student have at least one thing in common: they are compelled to be at a place not of their choosing. The state, recognizing that the compulsion it exerts upon a soldier limits his opportunity for worship, provides both chapels and chaplains. In their separate opinions in the Schempp case, both Justice Brennan and Justice Stewart touched on this point. Said Mr. Justice Brennan, “Hostility, not neutrality would characterize the refusal to provide chaplains in places of worship for prisoners and soldiers cut off by the state from all civilian opportunities for public communion … (United States Supreme Court, Abington v. Schempp, 384 U.S. 203 [1963]). And Mr. Justice Stewart said, “A lonely soldier stationed at some far away outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion” (ibid.).
Because the amount of compulsion exerted on a student is far less than that exerted on a soldier, the remedy need not be as dramatic. Therefore, it is certainly not necessary for every classroom to have a chapel. Yet a period of meditation surely seems justifiable. There is a meditation room in the United Nations Building and a prayer chapel in the nation’s Capitol. The supposed users of each of these have less of a need for such a provision than the immature student confined to the classroom. Although schedules would prevent an efficient use of a meditation room, a period of meditation does seem workable.
Opposition
What little opposition there is to a period of meditation comes from two sources—those who say it is “too little” and those who say it is “too much.” Those who say that it would be too limited an opportunity for religious expression suggest that any limitation is an infringement of the free-exercise clause. However, even the church has found it necessary to limit the scheduled time of prayer for the orderly conducting of its affairs. (When is the last time you heard a prayer offered during the middle of the sermon?) Those holding the “too little” view also convey the idea that the school should compel students to pray, or at least make it uncomfortable for those who choose not to pray.
Those who say that a period of meditation would give “too much” opportunity for religious expression suggest that education should provide no such opportunity. But according to the Educational Policies Commission of the National Education Association: “Development of moral and spiritual values is basic to all other educational objectives.” (Moral and Spiritual Values in the Public Schools, National Education Association, 1954, p. 6). On the point of establishment, Harold E. Achor, judge, Supreme Court of Indiana, made the following observation about the Regents Prayer, “To me it was no more logical to prohibit the children in New York from repeating this reverent but simple prayer because it contained the seeds of a state church than it would be to argue that no man be permitted to start a business in his garage because of the possibility he might monopolize the industry” (letter in the Fort Wayne News-Sentinel, June, 1964).
Early in 1966, Governor John A. Volpe of Massachusetts signed into law Senate Bill No. 734, which states in part, “At the commencement of the first class each day in all grades in all public schools the teacher in charge of the room in which such class is held shall announce that a period of silence not to exceed one minute in duration shall be observed for meditation, and during any such period silence shall be maintained and no activities engaged in” (Massachusetts, Senate Bill No. 734, 1966). Before signing the bill, Governor Volpe requested and received an official opinion on its legality from Massachusetts Attorney General Edward W. Brooke. Mr. Brooke, now a candidate for the United States Senate, said in part, “It is my opinion that Senate Bill No. 734 does not conflict with the provisions of the First Amendment to the Constitution of the United States …” (Massachusetts Attorney General’s Opinion, April 4, 1966).
The period of meditation is indeed a way to pray, and it may well be on its way to general use in our public schools.
The prevalent philosophy of collegiate morality was expressed to me recently by the student-body president of one of the largest, most influential campuses in America. “Jim,” he said, “last summer I met this girl, and it wasn’t long before we were having an affair.”
I had not asked him any personal questions; he simply volunteered information about his intimate relations: “I see nothing wrong with sexual relations prior to marriage as long as we’re mature enough to accept the responsibility, and it’s in love, and no one is hurt.”
This is the philosophy of the campus. Hugh Hefner, editor of Playboy, popularized it, gave it an air of sophistication, clothed it in intellectual garb; and many students today practice it as truth.
A sorority girl was picked up in a police raid on an Indiana University fraternity party in a local motel. Girls were found running down halls in negligees and men in shorts. When police telephoned and told the father that his daughter was at the county jail, he demanded: “What’s wrong?” To the officer’s reply that she was being held on a charge of indecent exposure, he said: “Thank God it’s only that.”
The American Family Service tells us that now one out of five brides is pregnant at marriage. Kinsey’s report asserts that over 50 per cent of college women have sexual relations prior to marriage. Yet some students and many administrators do not even realize a problem exists. And among those who are aware of the situation, many administrators, professors, and campus ministers seem hardened or immune to shock. “It’s not so bad,” they say. “That’s just impulsive youth.”
At the University of Colorado, 4,000 students—approximately one-third of the student body—sought psychiatric help in 1965. At another Big Eight campus, twenty-two students attempted to take their lives in one school calendar year. Four succeeded.
Drinking parties are no longer in. Now it’s drug and sex parties—sin in groups.
The real crisis lies in the personal spiritual hollowness among the student population.
Recently I met with five former student-body presidents and campus workers of three Christian groups. The fullest discussion followed of a comment by Scott McBride, 1964–65 student-body president at Stanford University and now a student at Harvard Business School: “At the heart of the students’ problem is their lack of meaning for living.”
This is the real crisis of the campus. Students have goals but no purpose. Students have plans but no conviction that they are proceeding in the right direction. Students have aspirations, but also frustration. They even have causes; yet their lives are meaningless.
Relative moral standards have produced a spiritual vacuum.
If the present philosophy of morality and the trend toward meaninglessness prevail, a crisis could develop from our campuses that could spell disaster in national life. For as Abraham Lincoln once said: “The philosophy of the classroom in one generation is the philosophy of the government in the next generation.”—JAMES R. HISKEY, All-American golfer, 1958; now national coordinator of the student leadership program of the presidential, governors’, and mayors’ prayer breakfasts.
