GEORGE C. WALLACE, GOVERNOR OF THE STATE OF ALABAMA, ET AL,
APPELLANTS V. ISHMAEL JAFFREE, ET AL., AND DOUGLAS T. SMITH, ET AL.,
APPELLANTS V. ISHMAEL JAFFREE, ET AL.

   No. 83-812 and 83-929

   In the Supreme Court of the United States

   October Term, 1983

   On Appeal from the United States Court of Appeals for the Eleventh
Circuit

   Brief for the United States as Amicus Curiae Supporting Appellants

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      A moment of silence for meditation or prayer
      in the public schools does not violate the
      Establishment Clause of the First
      Amendment
      A. Like the released time program in Zorach
          v. Clauson, Alabama's moment of silence
          statute is a permissible government accommodation
          of religious exercise; the opportunity it
          provides for religious exercise is purely
          voluntary, is neutral among religions and
          between religion and nonreligion, and occasions
          no interference by the State in church
          affairs.
      B. In applying the three-part test of Lemon
          v. Kurtzman, the court of appeals failed to
          distinquish between government efforts to
          sponsor religion and government accommodations
          of the voluntary exercise of religion.
      C. Other objections raised to the moment
          of silence are not of constitutional
          dimension.
      D. This Court has rejected the absolutist
          approach to the Establishment Clause that
          would require elimination of all religious
          elements from our public life.
   Conclusion

                          QUESTION PRESENTED

   Whether a state statute that authorizes public school teachers to
commence the school day by having their classes observe a moment of
silence, during which students may engage in silent meditation or
voluntary prayer, violates the Establishment Clause of the First
Amendment.

                     INTEREST OF THE UNITED STATES

   The State of Alabama, like some 23 other states, has authorized a
moment of silence in the public schools to enable students to engage
in silent meditation and voluntary prayer.  The court below held this
practice unconstitutional under the First Amendment to the United
States Constitution, as applied to the states through the Fourteenth
Amendment.  The United States has a substantial interest in this
matter, which raises the question whether the Constitution prohibits
neutral and noncoercive means of accommodating private religious
practices in the public schools and, by extension, in other public
contexts.  Among federal government activities potentially implicated
by a prohibition on governmental accommodation of religion are the
grant of tax preferences for religious institutions, the allowance of
religious holidays to federal employees, and the enforcement of the
religious accommodation requirements of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq.

   In addition, the United States is authorized to operate schools for
military and foreign service dependents under certain circumstances
(10 U.S.C. 7204 (Navy);  20 U.S.C. 241 (federal property);  20 U.S.C.
926 (Defense Department);  22 U.S.C. 2701 (foreign service)) and
schools for Indians (25 U.S.C. 271-304b).  The resolution of this case
will bear on Congress's authority to allow periods for silent prayer
or meditation in such schools.

   The United States has participated as a party or as amicus curiae
in numerous cases arising under the Religion Clauses of the First
Amendment.  See, e.g., briefs filed by the United States as amicus
curiae in Estate of Thornton v. Caldor, Inc., cert. granted, No.
83-1158 (Mar. 5, 1984);  School District of Grand Rapids v. Ball,
cert. granted, No. 83-990 (Feb. 27, 1984);  Lynch v. Donnelly, No.
82-1256 (Mar. 5, 1984);  Marsh v. Chambers, No. 82-23 (July 5, 1983);
St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772
(1981);  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977);
Sloan v. Lemon, 413 U.S. 825 (1973);  Roemer v. Board of Public Works,
426 U.S. 736 (1976);  and Lemon v. Kurtzman, 403 U.S. 602 (1971), and
briefs filed as a party in United States v. Lee, 455 U.S. 252 (1982),
and Tilton v. Richardson, 403 U.S. 672 (1971).

                               STATEMENT

   1. Appellee Ishmael Jaffree, an agnostic, filed this suit in the
United States District Court for the Southern District of Alabama on
behalf of three of his children who attend Mobile County, Alabama
public schools.  In his original complaint, he challenged the
practices of certain teachers who, at their own initiative, conducted
prayers with students during school hours.  Subsequently, appellee
amended his complaint to join as defendants the Governor of Alabama,
the state Attorney General, and several state education officials, and
to challenge the constitutionality of two state statutes:  Ala. Code
Section 16-1-20.1 (Supp. 1982), which authorizes teachers to institute
a brief period of silence ("not to exceed one minute") for meditation
or voluntary prayer at the commencement of the first class period, /1/
and a separate, independent state statute, passed after initiation of
the lawsuit, that would have permitted recitation of a state-composed
prayer at the beginning of any homeroom or class period.  /2/ A group
of parents intervened to support both spoken prayer and the moment of
silence.  Spoken prayer, rather than the moment of silence, was the
main focus of litigation in the lower courts.

   The district court issued a preliminary injunction barring
implementation of both statutes (J.S. App. 64d-75d).  For trial on the
merits, the court severed appellee's claim challenging
teacher-initiated prayer from his claim challenging the state
statutes.  Thereafter the court concluded that "the establishment
clause of the first amendment to the United States Constitution does
not bar the states from establishing a religion" (J.S. App. 59d).  It
therefore dismissed the challenge both the teacher-initiated prayer
(Jaffree v. Board of School Commissioners of Mobile County, 554 F.
Supp. 1104 (J.S. App. 1d-55d)) and to the Alabama statutes (Jaffree v.
James, 544 F. Supp. 727 (J.S. App. 56d-61d)) for failure to state a
claim upon which relief can be granted (J.S. App. 53d, 59d).  /3/

   2. Appellee Jaffree appealed to the Eleventh Circuit, and Justice
Powell, as Circuit Justice, issued an order granting a stay of the
district court's order and reinstating the injunction pending final
disposition of the appeal (J.S. App. 2e-5e).

   The court of appeals reversed the dismissal of each of appellee's
claims and remanded the case for entry of an order enjoining
implementation of the statutes and teacher-initiated prayers.  Jaffree
v. Wallace, 705 F.2d 1526 (J.S. App. 1a-20a).  The court concluded
(J.S. App. 7a-12a) that the district court's interpretation of the
First Amendment is contrary to cases decided by this Court, including
Everson v. Board of Education, 330 U.S. 1 (1947);  Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203 (1948);  Abington School
District v. Schempp, 374 U.S. 203 (1963);  and Engel v. Vitale, 370
U.S. 421, 429-430 (1962).  In one paragraph of its 20-page opinion
(J.S. App. 18a), the court of appeals held the moment of silence
statute unconstitutional because its objective was "the advancement of
religion." The court stated:  "We do not imply that simple meditation
or silence is barred from the public schools;  we hold that the state
cannot participate in the advancement of religious activities through
any guise, including teacher-led meditation.  It is not the activity
itself that concerns us;  it is the purpose of the activity." J.S.
App. 18a.  /4/

   The court of appeals denied a petition for rehearing and rehearing
en banc (J.S. App. 1b-2b).  Four judges dissented from the denial of
rehearing en banc insofar as the decision invalidated Alabama's moment
of silence statute (id. at 2b-4b).  The dissenting judges observed
first that the significance of the decision "transcends one state and
one statute," because many states have enacted similar laws (id. at
2b-3b).  Second, the dissenting judges noted that the
constitutionality of observing moments of silence in the public
schools had not been resolved by this Court, and that other courts had
reached conflicting decisions (id. at 3b).  Finally, the dissenting
judges expressed "some doubt as to the correctness of the panel
opinion" (ibid.), citing extensive scholarly and judicial authority in
support of the constitutionality of moment of silence provisions (id.
at 3b-4b).  The judges concluded that, however the issue might be
resolved by the en banc court, "it is important and sufficiently
unsettled to command its attention" (id. at 4b).

   3. The State and the intervenors appealed to this Court with
respect to both state statutes, and the School Board filed a petition
for a writ of certiorari with respect to the statutes and the
teacher-initiated prayers.  This Court summarily affirmed the judgment
of the court of appeals invalidating the state-composed prayer
statute, denied the petition for certiorari, and noted probable
jurisdiction to review the decision striking down the moment of
silence statute.

                          SUMMARY OF ARGUMENT

   In 1962, this Court held that a state may not direct or permit
public school teachers to lead their students in recitations of a
prayer.  Engel v. Vitale, 370 U.S. 421.  Since that time, Alabama and
some 23 other states have enacted statutes authorizing or requiring
daily moments of silence in the public schools.  /5/ At least until
recently, these provisions have generally been thought to be
constitutional.  Abington School District v. Schempp, 374 U.S. 203,
281 (1963) (Brennan, J., concurring) (footnote omitted) ("the
observance of a moment of reverent silence at the opening of class"
might be considered a "nonreligious means" of serving "solely secular
purposes * * * without jeopardizing either the religious liberties of
any members of the community or the proper degree of separation
between the spheres of religion and government");  Gaines v. Anderson,
421 F. Supp. 337 (D. Mass. 1976) (three judge court);  Opinion of the
Justices, 113 N.H. 297, 301, 307 A.2d 558, 560 (1973).  /6/ In the
last two years, however, three district courts, in addition to the
court of appeals below, have held that such provisions violate the
Establishment Clause.  May v. Cooperman, 572 F. Supp. 1561 (D. N.J.
1983);  Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013 (D. N.M.
1983);  Beck v. McElrath, 548 F. Supp. 1161 (M.D. Tenn. 1982).

   We believe that provision for a moment of silence in the public
schools is not an establishment of religion, but rather a legitimate
way for the government to provide an opportunity for both religious
and nonreligious introspection in a setting where, experience has
shown, many desire it.  It is an instrument of toleration and
pluralism, not of coercion or indoctrination.

   A. The moment of silence is constitutional for the same reasons the
released time program in Zorach v. Clauson, 343 U.S. 306 (1952), was
constitutional.  Whether the moment of silence is used for prayer or
for other contemplative activity is purely a matter of voluntary
choice.  The moment of silence is perfectly neutral with respect to
religious practice:  it neither favors one religion over another nor
conveys endorsement of religion.  It occasions no interference by the
government in the affairs of religious institutions.  Indeed, from the
perspective of the Establishment Clause, the moment of silence is less
problematic than the Zorach released time program.

   B. The cursory analysis employed by the court below is deficient in
that it does not distinguish between government efforts to sponsor (or
"establish") a religion and government efforts to accommodate the
voluntary practice of religion.  The court's wooden application of the
three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), reflects
this deficiency:  under it all government actions that have the
purpose or effect of facilitating or accommodating religious
observance would be invalid.  Numerous holdings of this Court make it
clear that the Religion Clauses do not invalidate governmental acts
whose purpose and effect is to facilitate opportunities for voluntary
religious practice.

   C. Certain other objections have been raised to moment of silence
provisions.  They have been thought unnecessary (since students are
free to engage in silent prayer during other school activities);  they
have been thought susceptible to unconstitutional administration;
they have been thought susceptible to unconstitutional administration;
 they have been thought coercive in requiring students who do not wish
to pray to remain silent.  These are not, in our view, objections of a
constitutional dimension;  they certainly do not justify facial
invalidation of the statutes of Alabama and some 23 other states.

   D. Perhaps most fundamentally, the moment of silence has been
opposed because it is inconsistent with a view of the Establishment
Clause which would require the absolute elimination of religious
elements from our public schools and public life.  That view, however,
has been consistently rejected by this Court.  The purpose of the
Establishment Clause is not to work an artificial secularization upon
our public life and institutions, but to ensure that the force of
government is not brought to bear to induce or to restrain voluntary
religious exercise (or nonexercise).  The moment of silence, we
submit, is fully consistent with that purpose.

                               ARGUMENT

 A MOMENT OF SILENCE FOR MEDITATION OR PRAYER IN THE PUBLIC SCHOOLS
DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT

   In 1962, this Court held that the First Amendment, as applied to
the states through the Fourteenth Amendment, prohibits the states from
directing or permitting public school teachers to lead their classes
in the recitation of a prayer.  Engel v. Vitale, 370 U.S. 421.  If
anything has become clear during the more than 20 years of public
controversy that has ensued, it is that opinions on the question of
the proper role of religious observance in the public schools vary
dramatically and are passionately held.  Many persons feel, with
intense sincerity, that the everyday world of work or study ought to
include at least a moment during which individuals have an opportunity
to acknowledge a transcendent element in their lives.  This need is
felt most acutely by persons of religious faith who believe that
prayer should be an integral part of all of life's activities,
including school, and that the state in its role as enforcer of
compulsory education laws and provider of universal public education
should be ready to accommodate this belief.  The practice of opening
the school day with spoken prayer and scriptural reading was
responsive to these feelings;  when this practice was declared
unconstitutional, it was perceived by many as a rebuff to fundamental
aspirations.

   On the other hand, in ruling these practices invalid the Court was
responding to other concerns that are also deep and intense.  Many
persons feel that the recitation of prayers and scriptures in school
is an invasion of their right to control their, or their children's,
religious life.  They believe that there is no way to ensure the truly
voluntary character of prayer in this context -- that impressionable
young people will feel pressure to engage in religious observances in
which they do not believe.  There is also the concern that decisions
about what prayer to recite, what scripture to read, will create the
appearance of an official endorsement of one faith, to the
disadvantage of adherents of minority faiths or of no religion at all.

   Evidently one way to meet these latter concerns is to eliminate all
opportunity for devotional practices at school.  Students can pray, if
they want to pray, at home, or if they can find a suitable occasion
during snatches of inactivity in the school day.  We do not doubt that
this approach is constitutional;  it is unlikely that in most contexts
a strong Free Exercise claim could be made that time for personal
prayer must be set aside during the school day.

   The question before the Court, however, is whether this approach --
which flatly rejects the intensely felt desire of some to be allowed
an opportunity for a brief formal moment of devotion within the school
day -- is the only constitional approach.  The legislatures of
twenty-four states have concluded that the practice at issue here, a
moment of silence for the purpose of silent meditation, provides an
alternative that meets the concerns about genuine voluntariness and
evenhandedness which animated the school prayer decisions, but that
also accommodates the desire of so-minded students to pray.  Our
submission is that this is a valid solution -- one that advances the
purposes of the Religion Clauses.

   The Alabama statute provides a brief period of quiet in which
students can direct their attention away from the immediate press of
classroom activity without interruption, distraction, or fear of
embarrassment.  It creates a moment of privacy, an opportunity for
either religious or nonreligious introspection (in the language of the
statute, either "prayer" or "meditation") in a setting where, as
experience has shown, many desire it.  It is a means for accommodating
the religious and meditative needs of students without in any way
diminishing the school's own neutrality or secular atmosphere.
Indeed, for persons who believe that prayer must be an integral part
of all of life's activities (including school), it may make the
difference between being able, in good conscience, to attend a secular
public school and being forced to seek an explicitly religious
alternative education.

   Silence operates in a perfectly tolerant, neutral, and libertarian
manner.  What is done within it remains a mystery.  Each boy or girl
may meditate or pray;  but no one can know who prays or how he does
it;  and each is equally free to think about yesterday's football game
or tonight's date and no one will be the wiser.  Silence thus
accommodates those who wish to engage in the "free exercise" of prayer
even during school hours, but does so without coercing or disturbing
any other person.  The moment of silence is an instrument of
toleration and pluralism, not of coercion or indoctrination.

   A moment of silence is, after all, just that:  a brief period of
quiet, during which students are asked to do but one thing -- to be
still, alone with their thoughts.  By requiring a moment of silence,
then, the teacher does nothing more coercive than to reaffirm this
simple truth:  silent reflection -- no less than listening, reading,
and talking -- is important to education and learning.  Introspection,
whether religious or nonreligious, is part of the life of the mind.
That is why Wordsworth called silence a "daily teacher" and Keats
thought truth a "foster-childof silence."

 A. Like the Released Time Program in Zorach v. Clauson, Alabama's
Moment of Silence Statute is a Permissible Government Accommodation of
Religious Exercise;  the

               Opportunity It Provides for Religious Exercise is

               Purely

               Voluntary, is Neutral Among Religions and Between

               Religion and Nonreligion, and Occasions No Interference

               by the State In Church Affairs

   The fundamental impulse that led to the adoption of the Religious
Clauses of the First Amendment was the desire to give free scope to
religious practice without the interference that governmental
prohibitions or establishments would necessarily entail.  The end is
toleration and accommodation, not the removal of all traces of
religion from our public life.  See generally Lynch v. Donnelly, No.
82-1256 (Mar. 5, 1984), slip op. 4-9.  That is why this Court has
repeatedly recognized that governments may expand opportunities for
voluntary religious exercise, and may -- indeed, sometimes must --
ease burdens caused by facially neutral public or private practices
that make it difficult for individuals to observe their faith.  /7/
See McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J.,
concurring);  Br. for the United States as Amicus Curiae in Estate of
Thornton v. Caldor, Inc., supra, at 15-17.  /8/ The moment of silence
is an example of a permissible accommodation of religion.  Through it
the State -- without itself sponsoring or endorsing religion --
provides an opportunity for purely voluntary private devotion in the
context of a highly structured, compulsory state institution where
such opportunities would otherwise be nonexistent or extremely
limited.  /9/

   The constitutionality of the moment of silence is most powerfully
supported by this Court's holding in Zorach v. Clauson, 343 U.S. 306
(1952).  /10/ There, the school authorities faced the question of how
best to deal with the "religious needs" (id. at 315) of some students
for religious instruction or devotion.  A prior decision, Illinois ex
rel. McCollum v. Board of Education, 333 U.S. 203 (1948), had held
that public schools could not invite religious instructors into the
school for purposes of religious instruction.  Nonetheless,
apprehending the need to "respect() the religious nature of our people
and accommodate() the public service to their spiritual needs" (343
U.S. at 314), the school district in Zorach decided to permit
students, with the permission of their parents, to leave the school
grounds and go to religious centers for religious instruction.

   This Court held that the released time program in Zorach was
constitutional.  It observed that "(w)hen the state encourages
religious instruction or cooperates with religious authorities by
adjusting the schedule of public events to sectarian needs, it follows
the best of our traditions" (343 U.S. at 313-314).  The Court reasoned
(id. at 313) that there are many circumstances in which public school
students need special provision to enable them to exercise their
religion.  Examples given were Roman Catholic mass during school hours
on a Holy Day of Obligation, Jewish observances on Yom Kippur, and
Protestant attendance at a family baptismal ceremony.  The need for
regular religious instruction and devotion, the Court found, is not
different.  Whether religious accommodation is made "occasionally for
a few students, regularly for one, or pursuant to a systematized
program designed to further the religious needs of all the students
does not alter the character of the act." Ibid.

   The moment of silence is an equally appropriate response to the
religious needs of many students.  /11/ By providing a brief
opportunity for contemplative activity at the beginning of the school
day, the government does not itself engage in or sponsor a religious
activity;  silence is spiritually and ideologically neutral.  All the
government does is to create an opportunity that the students may use,
if they wish, for prayer -- or for meditation or other quiet
contemplation if they prefer.  Nothing is asked of a student who
wishes not to pray or meditate but that he remain silent, respecting
the rights of his fellow students whose views may be different.  No
one can even know what the other chooses to do.

   As was the case in Zorach, then, the moment of silence puts
religion on a wholly voluntary basis;  it simply expands the freedom
available to individuals to decide for themselves whether and how to
engage in religious practice, without inducing or coercing that
choice.  The student "is left to his own desires as to * * * his
religious devotions, if any." Zorach, 343 U.S. at 311.

   Further, the moment of silence is perfectly neutral with respect to
religious practice:  /12/ it neither favors one religion over another,
nor conveys "endorsement or disapproval of religion." Lynch v.
Donnelly, slip op. 1 (O'Connor, J., concurring);  see also Gaines v.
Anderson, 421 F. Supp. at 343-344.  It thus more than satisfies
Zorach's requirement that religious accommodations be "neutral when it
comes to competition between sects" (343 U.S. at 314).  /13/ All major
religious faiths recognize silent prayer as an acceptable form of
prayer.  C. Whittier, Silent Prayer and Meditation in World Religions
7 (Congressional Research Service May 27, 1982).  /14/ Whatever one's
faith, a moment of silence offers an opportunity for personal
devotion;  yet it is offensive to no one.  A better example of
"accommodation of all faiths * * * and hostility toward none" (Lynch
v. Donnelly, slip op. 8) would be difficult to find.  /15/

   To be sure, the moment of silence implicitly presupposes, and thus
affirms, the appropriateness of individual contemplative activity in
an educational setting;  and the Alabama statute (unlike some of the
other state statutes) /16/ leaves no doubt that religious
contemplation is as legitimate as other forms of meditation.  But in
Zorach, the Court rejected the argument that to create an opportunity
for religious practice impermissibly throws "the weight and influence
of the school * * * behind a program for religious instruction" (343
U.S. at 309).  The distinction is between toleration and accommodation
on the one hand, and sponsorship and establishment on the other.  The
moment of silence "endorses" only the view that the religious
observances of others should be tolerated and, where possible,
accommodated.  Lynch v. Donnelly, slip op. 4.

   Finally, the moment of silence occasions no intrusion whatever by
the state into church affairs or vice versa (cf. Lemon v. Kurtzman,
403 U.S. 602, 614 (1971)), and thus entails no interference with "the
essential autonomy of religious life" (Marsh v. Chambers, No. 82-23
(July 5, 1983), slip op. 9 (Brennan, J., dissenting)).  In Zorach, the
released time program required the school district to decide what
"religious centers" would qualify for participation, and involved the
school in receiving written authorizations from parents and weekly
attendance reports from churches (343 U.S. at 308).  The Court did not
find these contacts between governmental and religious authorities to
be excessive.  Here, not even such minimal contacts exist.
Schoolteachers simply decide whether or not to have a moment of
silence;  there is no interaction with religious authorities and no
need for inquiry into religious issues.

 B. In Applying the Three-Part Test of Lemon v. Kurtzman, the Court of
Appeals Failed to Distinguish Between Government Efforts to Sponsor
Religion and Government Accommodations of the Voluntary Exercise of
Religion

   The court of appeals devoted little attention in its opinion to the
moment of silence provisions.  All but one paragraph of its 20-page
opinion (J.S. App. 18a) dealt with the issues raised by the recitation
of spoken prayers (as to which this Court summarily affirmed).  We
suspect that the moment of silence issue -- one of first impression
for that court, as it is for this Court -- was simply engulfed in the
wider waters of the case.

   The court of appeals concluded that the moment of silence statute
does not satisfy the "purpose" and "effect" prongs of the test set
forth in Lemon v. Kurtzman, supra.  /17/ However, the court's cursory
analysis was fundamentally flawed, because the court did not
distinguish between government efforts to sponsor (or "establish") a
religion and government efforts to accommodate the practice of
religion.

   1. Purpose.  Relying on a preliminary finding by the district court
on a motion for a preliminary injunction, /18/ the court of appeals
stated that "(t)he objective of the meditation or prayer statute (Ala.
Code Section 16-1-20.1) was also the advancement of religion" (J.S.
App. 18a).  The existence of "this fact" and the "inclusion of prayer
(in the text of the statute)" led the court to conclude that the
statute "involves the state in religious activities" and demonstrated
to the court that there was "a lack of secular legislative purpose on
the part of the Alabama Legislature" (ibid.).

   This reasoning cannot withstand analysis.  The principal purpose of
the moment of silence statute is not hidden or difficult to discover:
it is to create an opportunity for school children at the beginning of
the school day to engage in brief silent prayer or meditation.  The
court concluded that the "purpose" of this was the "advancement of
religion." But this is so only in the sense that any attempt to
facilitate the free exercise of religion "advances" religion.  Yet
this Court has on numerous occasions considered the legitimacy of
government efforts to accommodate religion, and has repeatedly upheld
accommodation as a legitimate purpose -- even finding, on occasion,
that accommodation is constitutionally required.  Lynch v. Donnelly,
slip op. 4.  See, e.g., Thomas v. Review Board, supra;  Gillette v.
United States, 401 U.S. 437 (1971);  Sherbert v. Verner, 374 U.S. 398
(1963);  Zorach v. Clauson, supra;  cf. United States v. Lee, 455 U.S.
252 (1982);  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977).

   A government practice of accommodating religious needs also makes
an important point about toleration and pluralism.  The moment of
silence thus serves the wholesome purpose of "fostering harmony and
tolerance among the pupils." Schempp, 374 U.S. at 280 (Brennan, J.,
concurring).  Ours is a nation of great religious diversity.
Schoolchildren may reveal their religious background -- or lack of it
-- in the clothing they wear, the food they eat, or the words they
utter;  religious differences are not likely to be overlooked.
Harmony requires, therefore, that we develop habits of mutual respect
and toleration for the religious practices of others.  The moment of
silence provides an opportunity for young people to learn that each
individual is free to worship and believe (or not believe) according
to the dictates of his own conscience, and that the religious
practices of others do not threaten or interfere with their own.  The
moment of silence is uniquely suited to such a lesson in toleration
because of its dual nature -- as an opportunity for exercise of faith
among those who believe, and a wholly secular occasion for those who
do not.  /19/

   The court of appeals' conclusions about the purpose of the moment
of silence statute were based largely on casually phrased testimony in
the district court by the provision's sponsor /20/ that his purpose
was "to return voluntary prayer to the public schools" (J.S. App.
71d).  This statement, viewed in the context of the actual bill he
introduced, can most plausibly be read as referring to voluntary
silent prayer.  And since the bill also made provision for silent
meditation, it seems clear that he hoped to facilitate voluntary
silent prayer in a neutral and (we submit) constitutionally
unobjectionable manner.  That some legislators may have harbored the
hope that students would in fact use the opportunity provided for
religious ends is not significant, so long as the means chosen by the
legislature is found to be within the bounds of permissible
accommodation.  See Mueller v. Allen, No. 82-195 (June 29, 1983), slip
op. 6;  United States v. O'Brien, 391 U.S. 367, 383 (1968).

   Nor should the apparent hostility of some of Alabama's legislators
to this Court's decisions in Schempp and Engel be considered fatal to
the constitutionality of the moment of silence.  Government officials
are required to comply with judicial decisions, not to speak well of
them.  The moment of silence statute need not be viewed as a "guise"
for evading this Court's decisions (J.S. App. 18a);  it can more
fairly be understood as an attempt -- even if a grudging attempt -- to
comply with them.  See Gaines v. Anderson, 421 F. Supp. at 341.  /21/

   2. Effect.  The court of appeals' application of the "effect"
aspect of the Lemon test is so conclusory as to make it difficult to
analyze;  however, it appears to mirror that court's "secular purpose"
analysis.  The court's "hold(ing)" that "the state cannot participate
in the advancement of religious activities" fails to distinguish
between state actions that "advance" religion by coercing, sponsoring,
or inducing it, and those that "advance" religion merely by removing
obstacles or creating opportunities for its exercise.  This profound
distinction between endorsing a particular point of view and creating
a neutral forum for expressive activity is at the heart of First
Amendment law (see Widmar v. Vincent, 454 U.S. 263, 273 (1981), and
can be ignored only at the cost of stifling the exercise of First
Amendment rights.

   3. In sum, the court of appeals' application of the Lemon test
would result in invalidating all government actions that have the
purpose or effect of facilitating or accommodating religious
observance.  It creates a tension with this Court's many decisions
upholding, and in some cases requiring, religious accommodations --
and with the Free Exercise Clause itself.  For "the Constitution * * *
affirmatively mandates accommodation, not merely tolerance, of all
religions, and forbids hostility toward any." Lynch v. Donnelly, slip
op. 4.  We have recently noted in this Court /22/ the problematic
nature of using the purpose and effect tests of Lemon in the context
of determining the legitimacy of practices that seek to accommodate
voluntary religious exercise.  In any event, those tests should, in
light of this Court's religious accommodation decisions, be
interpreted in a manner that affirms that the purpose of religious
accommodation is constitutionally legitimate, and that the effect of
such accommodation, if appropriately neutral and voluntary, is no less
so.

 C. Other Objections Raised to the Moment of Silence Are Not of
Constitutional Dimension

   Certain other objections have been raised by courts and
commentators to observing a moment of silence in the public schools.
Although not relied on by the court below, several of these warrant
brief discussion.

   1. The moment of silence is alleged to be unnecessary:  "inasmuch
as every student always retains the right to pray silently whenever
the student so chooses, the meditation or prayer statute is not
necessary to 'accommodate' that right." Br. of American Civil
Liberties Union as Amici Curiae in Support of Appellee's Motion to
Dismiss or Affirm at 11;  see also Harvard Note at 1885.

   As far as it goes, this observation is true:  silent prayer can
occur without a formal moment of silence.  (We recall the jest that
children will continue to pray in school as long as there are algebra
tests.) Necessity, however, is not the standard.  Approximately half
of the states have judged it appropriate to accommodate the religious
needs of schoolchildren by providing an opportunity to pray during a
formal moment of silence.  Their reasons for doing so are substantial
and should not be casually disparaged.

   The principal advantage of the moment of silence is that it
produces silence.  Schoolchildren may be able to meditate or pray
during the hustle-bustle of lunch, or on the playground, or during a
lull in classroom activity.  But surely all contemplative activity,
including prayer, is enhanced if outside distractions are momentarily
stilled.

   The liberating aspect of the moment of silence also should not be
overlooked.  Many people, even religious people, especially children,
find it somewhat embarrassing to be caught in the act of prayer.  A
student who wanders off by himself on the playground in order to offer
up a brief prayer, or who lapses into a reverent silence at the lunch
table, might well be the brunt of jokes and intimidation.  If all are
silent, then all are free to pray or meditate as they choose, without
having to appear "different." Cf. Schempp, 374 U.S. at 208 n.3.

   In any event, most forms of religious accommodation are subject to
the objection that they are "unnecessary." The students involved in
Zorach could have found time in the evening or at dawn to engage in
religious instruction, without benefit of the released time program;
the employees of church-operated schools in St. Martin Evangelical
Lutheran Church v. South Dakota, 451 U.S. 772 (1981) could probably
afford to pay unemployment taxes (cf. United States v. Lee, supra);
there is no indication that parents in Mueller v. Allen, supra, could
not send their children to religious schools without tax deductions.
How serious is the need for a particular religious accommodation
(where not required by the Free Exercise Clause) is primarily a
question of public policy, for legislatures to assess.  See United
States v. Lee, 455 U.S. at 259-261;  Zorach v. Clauson, 343 U.S. at
310, 314.  /23/ The Religion Clauses do not restrict religious
accommodation to cases where the exercise of religion without the
accommodation becomes impossible;  their purpose is to facilitate the
free and voluntary exercise of religion, not to restrict it to an
inhospitable and grudging minimum.

   2. A more substantial objection is that the moment of silence might
be administered in an unconstitutional manner.  A teacher might, for
example, preface the moment of silence with an explanation that would
tend to indoctrinate or induce students to use the time for prayer.
Beck v. McElrath, 548 F. Supp. at 1165.  Another teacher might insist
upon a bowing of the head or a folding of the hands, gestures that
convey a specifically religious symbolism.  May v. Cooperman, 572 F.
Supp. at 1567, 1571.

   These speculations, however, are not pertinent to this case, which
raises solely a challenge to the constitutionality of Alabama's moment
of silence law on its face.  Because implementation of the statute has
been enjoined since shortly after its passage, there is no record of
how the moment of silence would be administered.

   With certain exceptions not relevant here, a law must be sustained
on a facial challenge so long as there are nontrivial examples of
permissible application.  It cannot be struck down merely because some
applications of it might be unconstitutional.  See Kleppe v. New
Mexico, 426 U.S. 529, 546 (1976);  Zorach, 343 U.S. at 311 & n.7.  If
some teachers or school districts abuse the moment of silence, a
challenge can be brought in that concrete factual context.  See New
York v. Ferber, 458 U.S. 747, 767-768 (1982);  United States v.
Raines, 362 U.S. 17, 20-22 (1960).

   3. It is sometimes suggested that the moment of silence coerces the
unwilling student into "participating" in a "State prescribed
religious observance." May v. Cooperman, 572 F. Supp. at 1571;  see
also Duffy v. Las Cruces Public Schools, 577 F. Supp. at 1022.  This
is true, according to one court, even when the student is not induced
to pray, because the moment of silence in itself "requires all
students to assume a posture identified as the posture of prayer of
certain religious groups." May v. Cooperman, 572 F. Supp. at 1571.
This forces the students "to decide whether * * * (to) submit to an
exercise which violated their beliefs or whether they should separate
themselves from their peers." Id. at 1576.

   This, we submit, is pure nonsense.  Silence in itself is not a
religious exercise in which one is forced to "participate";  it is
merely a private moment, to be used as one wishes, for religious or
nonreligious contemplation.  As the court observed in Gaines v.
Anderson, 421 F. Supp. at 345, "(i)f a student's beliefs preclude
prayer in the setting of a minute of silence in a schoolroom, he may
turn his mind silently toward a secular topic, or simply remain
silent, without violating the statute * * * or facing the scorn or
reproach of his classmates." /24/

 D. This Court Has Rejected the Absolutist Approach to the
Establishment Clause That Would Require Elimination of All Religious
Elements From Our Public Life

   The moment of silence faces still another objection, generally
unstated but no less serious:  some children will actually use the
opportunity to pray.  No matter that children are equally free to
meditate, or daydream, or doze;  no matter that none is coerced,
intimidated, or indoctrinated in any fashion.  The prospect that some
individuals could openly (even if silently) pray in a public school is
inconsistent with the "absolutist approach" to the Establishment
Clause (Lynch v. Donnelly, slip op. 8) that this Court has frequently
confronted.  The animating ideal of that approach is a pristinely
secular society in which all public manifestations of religious faith
and practice are deemed inappropriate;  where religion, if it is to be
practiced at all, is relegated to the purely private sphere of home
and church.  That approach demands not neutrality and pluralism but a
rigorous extirpation of religious elements from public occasions, no
matter how minor, traditional, evenhanded, noncoercive, or inoffensive
they may be.  See, e.g., Lynch v. Donnelly, supra;  Marsh v. Chambers,
supra;  Widmar v. Vincent, supra;  O'Hair v. Andrus, 613 F.2d 931
(D.C. Cir. 1979).  It examplifies an attitude "partak(ing) not simply
of that noninterference and noninvolvement with the religious which
the Constitution commands, but of a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to the
religious." Schempp, 374 U.S. at 306 (Goldberg, J., concurring).

   This Court, however, has consistently affirmed constitutional
ideals that "rest on and encourage diversity and pluralism in all
areas" (Lynch v. Donnelly, slip op. 8 (emphasis added)), and that give
due respect to religious observances that have "become part of the
fabric of our society" (Marsh v. Chambers, slip op. 9).  See also
Lynch v. Donnelly, slip op. 5-8.  It has repeatedly rejected, both
explicity and implicitly, the notion "that the Establishment Clause of
the First Amendment not only mandates religious neutrality on the part
of government but also requires that this Court go further and throw
its weight on the side of those who believe that our society as a
whole should be a purely secular one." Meek v. Pittenger, 421 U.S.
349, 395 (1975) (Rehnquist, J., dissenting).  From the famous dictum
that "(w)e are a religious people whose institutions presuppose a
Supreme Being" (Zorach v. Clauson, 343 U.S. at 313) to the recent
affirmation of the "unbroken history of official acknowledgment by all
three branches of government of the role of religion in American life"
(Lynch v. Donnelly, slip op. 5), this Court has resisted efforts to
use "(t)he Establishment Clause * * * as a sword to justify repression
of religion or its adherents from any aspect of public life." McDaniel
v. Paty, 435 U.S. at 641 (Brennan, J., concurring) (footnote omitted).

   It is true that religious practice makes some people uncomfortable:
 "there are those who profess no religion and to whom any form of
prayer is offensive" (May v. Cooperman, 572 F. Supp. at 1575).  But
the Constitution does not protect against the observance by others of
religious beliefs with which we disagree.  Cf. Cantwell v.
Connecticut, 310 U.S. 296 (1940).  And we have no right to demand that
their thoughts and words, because they are religious in nature, should
be excluded from schools or other public places (Widmar v. Vincent,
supra), placed under special burdens or inhibitions (McDaniel v. Paty,
supra), or denied the benefit of the government's acknowledged power
to encourage and give free rein to voluntary First Amendment activity
(Heffron v. International Society for Krishna Consciousness, 452 U.S.
640 (1981)).  The Establishment Clause does not require students to
shed their religious beliefs and practices at the schoolhouse gate for
fear of offending their fellows.  Cf. Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 506 (1969).  /25/

   The special character of the public school classroom justifiably
makes us especially sensitive to possible Establishment Clause
problems in that setting.  But we should be sensitive to the need for
toleration and accommodation in the schoolhouse as well as to the need
for voluntarism and neutrality.  We should nurture and encourage
efforts to widen rather than narrow the liberty of religious exercise.
 /26/

   Attendance at elementary and secondary schools is compulsory, and
it constitutes a major portion of the pupils' time and activity.  To
those who regard prayer as intrinsic to all of their activities, the
opportunity for prayer at school assumes a special importance.  The
values of pluralism and diversity in our public schools suffer
needlessly from a reading of the Establishment Clause that destroys
the possibility of accommodating, in a spirit of toleration, voluntary
religious practices of sort involved in this case.

   Moment of silence statutes are libertarian in the precise spirit of
the Bill of Rights.  This is best illumined simply by visualizing a
classroom of schoolchildren who have, pursuant to the Alabama statute,
been asked to be silent for one minute to open their school day.  From
the viewpoint of the Constitution, has anything gone wrong here?  All
we know with certainty is that, for one minute, there has been no
noise, that each child has been made to be alone with his thoughts.
If a child uses this moment of silence, privately, to dedicate himself
to God, nothing in the spirit of the Constitution has been offended.
All we have done is to accommodate those who wish to pray, and we have
done so in the most neutral and noncoercive spirit possible.  To hold
that the moment of silence is unconstitutional is to insist that any
opportunity for religious practice, even in the unspoken thoughts of
schoolchildren, be extirpated from the public sphere.  It is to be
censorial where the Religion Clauses are libertarian;  it is
inconsistent with our national commitment to freedom and tolerance.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   MICHAEL W. MCCONNELL

      Assistant to the Solicitor General

   BRIAN K. LANDSBERG

   MARGARET P. SPENCER

      Attorneys

   July 1984

   /1/ Ala. Code Section 16-1-20.1 (Supp. 1982) provides that:

         At the commencement of the first class of each day in all
      grades in all public schools, the teacher in charge of the room
      in which each class is held may announce that a period of
      silence not to exceed one minute in duration shall be observed
      for meditation or voluntary prayer, and during any such period
      no other activities shall be engaged in.

   This provision became effective on April 29, 1981.  A separate
provision, Ala. Code Section 16-1-20, not involved in this case, also
provides for a moment of silence in Alabama public schools.  That
statute differs from the provision at issue here in three respects:
it applies only to grades one through six, it requires (rather than
permits) teachers to conduct the moment of silence, and it refers to
"meditation" alone.  The judgment of the court of appeals did not
directly pertain to Ala. Code Section 16-1-20, and the latter is not
at issue here.

   /2/ The statute, Ala. Code Section 16-1-20.2, provided that:

         From henceforth, any teacher or professor in any public
      educational institution within the state of Alabama, recognizing
      that the Lord God is one, at the beginning of any homeroom or
      any class, may pray, may lead willing students in prayer, or may
      lead the willing students in the following prayer to God:

         Almighty God, You alone are our God.  We acknowledge You as
      the Creator and Supreme Judge of the world.  May Your justice,
      Your truth, and Your peace abound this day in the hearts of our
      countrymen, in the counsels of our government, in the sanctity
      of our homes and in the classrooms of our schools in the name of
      our Lord.  Amen.

   This provision was enacted on July 8, 1982, some 14 months after
the moment of silence statute became effective.

   /3/ The district court accordingly dissolved the preliminary
injunction (J.S. App. 59d).

   /4/ Because the district court viewed the Establishment Clause as
not applicable to the states (J.S. App. 59d), it did not make factual
findings with respect to the purposes or consequences of the statutes
in question, nor did it separately analyze the statutes.  The court of
appeals rejected the district court's interpretation of the reach of
the Establishment Clause (J.S. App. 10a-11a), but did not remand for a
seperate inquiry on the administration of the moment of silence
statute.  Instead, it held the moment of silence statute invalid on
its face.  Id. at 18a.

   /5/ In addition to Ala. Code Section 16-1-20.1 (Supp. 1982), see
Ariz. Rev. Stat. Ann. Section 15-522 (Supp. 1983);  Ark. Stat. Ann.
Section 80-1607.1 (1980);  Conn. Gen. Stat. Ann. Section 10-16a (West
1981);  61 Del. Laws ch. 547 (1978) (as interpreted in Op. Att'y Gen.
79-I 011 (1979));  Fla. Stat. Ann. Section 233.062 (West Supp. 1983);
Ga. Code Ann. Section 20-2-1050 (1982);  Ill. Rev. Stat. ch. 122,
Paragraph 771 (Supp. 1983);  Ind. Code Ann. Section 20-10.1-7-11
(Burns Supp. 1983);  Kan. Stat. Ann. Section 72.5308a (1980);  La.
Rev. Stat. Ann. Section 17:2115 (West 1982);  Me. Rev. Stat. Ann. tit.
20-A, Section 4805 (1982);  Md. Educ. Code Ann. Section 7-104 (1978);
Mass. Ann. Laws ch. 71, Section 1A (Michie/Law. Co-op. Supp. 1983);
Mich. Comp. Laws Section 380.1565 (1979);  N.J. Rev. Stat. Section
18A:36-4 (Supp. 1983);  N.M. Stat. Ann. Section 22-5-4.1 (1981);  N.Y.
Educ. Law Section 3029-a (McKinney 1981);  N.D. Cent. Code Section
15-47-30.1 (1981);  Ohio Rev. Code Ann. Section 3313.601 (Page 1980);
Pa. Stat. Ann. tit. 24, Section 15.1516.1 (Purdon Supp. 1983);  R.I.
Gen. Laws Section 16-12-3.1 (1981);  Tenn. Code Ann. Section 49-1922
(Supp. 1982);  Va. Code Section 22.1-203 (1980).

   /6/ The weight of scholarly authority also favors the moment of
silence.  See, e.g., L. Tribe, American Constitutional Law Section
14-6, at 829 (1978);  P. Freund, The Legal Issue, in Religion in the
Public Schools 23 (1965);  Choper, Religion in the Public Schools:  A
Proposed Constitutional Standard, 47 Minn. L. Rev. 329, 371 (1963);
Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich. L. Rev.
1031, 1041 (1963);  Comment, Accommodating Religion in the Public
Schools, 59 Neb. L. Rev. 425, 450-454 (1980);  Note, Religion and the
Public Schools, 20 Vand. L. Rev. 1078, 1092-1093 (1967).  But see,
e.g., Drakeman, Prayer in the Schools:  Is New Jersey's Moment of
Silence Law Constitutional?, 35 Rutgers L. Rev. 341 (1983);  Note, The
Unconstitutionality of State Statutes Authorizing Moments of Silence
in the Public Schools, 96 Harv. L. Rev. 1874 (1983) (hereinafter cited
as Harvard Note);  Note, Daily Moments of Silence in Public Schools:
A Constitutional Analysis, 58 N.Y.U.L. Rev. 364 (1983) (hereinafter
cited as NYU Note).

   /7/ The Framers of the Bill of Rights were well aware of the
concept of nonmandatory religious accommodation by the government.
For example, during debate on adoption of the Second Amendment, the
First Congress considered language that would have provided that "no
person religiously scrupulous of bearing arms shall be compelled to
render military service in person." 1 Annals of Cong. 434 (J. Gales
ed. 1789).  The language was deleted, in large part because, as Egbert
Benson of New York put it, "(n)o man can claim this indulgence of
right.  It * * * ought to be left to the discretion of the
Government." Id. at 750.  This incident strongly supports the view
that the Congress and the legislatures of the various states have
discretion to undertake action to facilitate religious scruple.  See
also C. Antieau, A. Downey & E. Roberts, Freedom From Federal
Establishment:  Formation and Early History of the First Amendment
Religion Clauses 62-91 (1964) (describing numerous early examples of
governmental cooperation with religion).

   /8/ A copy of that brief has been provided to the parties in this
case.

   /9/ It is particuarly appropriate for the state to provide an
opportunity for voluntary religious exercise in circumstances such as
military service, prisons, or compulsory schooling, where the state
has itself created a regimented environment that would -- in the
absence of governmental accommodations -- tbnd to inhibit religious
exercise.  See Marsh v. Chambers, No. 82-23 (July 2, 1983) slip op.
17-18 (Brennan, J., dissenting).

   /10/ The continued authority and vitality of Zorach is not in
doubt.  Although decided by a closely divided Court (three Justices
dissenting), Zorach has become one of the leading cases on the
principle that the Religion Clauses permit certain accommodations for
religious practice.  It has been cited approvingly by both majority
and dissenters in recent Establishment Clause cases.  See, e.g., Lynch
v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 4, 5, 8, 12
(majority opinion);  slip op. 21-22 (Brennan, J., dissenting);  Marsh
v. Chambers, No. 82-83 (July 5, 1983), slip op. 9 (majority opinion);
slip op. 1 n.1, 17-18 n.29 (Brennan, J., dissenting).

   /11/ It might be argued that the moment of silence is more like the
on-premises released time program invalidated in McCollum than the
off-premises program approved in Zorach, simply because the
opportunity for religious practice here takes places physically on the
public school premises.  However, the constitutional flaw in the
McCollum program was that "the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction." Zorach, 343 U.S. at 315.  Since the moment of
silence is not in and of itself a religious activity (but only a
moment of privacy in which a student may, if he chooses, engage in a
religious activity), it does not create the concerns generated by the
McCollum program.  The classroom is not used for religious instruction
or overt religious observance;  thus the force of the school is in no
way used to promote prayer.

   /12/ Of course, a perfect neutrality is not required of efforts to
accommodate voluntary religious exercise.  In keeping with the special
status of religion under the Free Exercise Clause, the government may
seek to accommodate or protect religiously-motivated claims of
conscience even where it does not accord the same treatment to other
strongly-held beliefs.  Marsh v. Chambers, slip op. 17-18 (Brennan,
J., dissenting);  see, e.g., Thomas v. Review Board, 450 U.S. 707
(1981);  Wisconsin v. Yoder, 406 U.S. 205 (1972);  Gillette v. United
States, 401 U.S. 437 (1971).

   /13/ The practice of providing a moment of silence at the outset of
the school day seems substantially less problematic than the released
time program upheld in Zorach.  The Zorach program was directed
exclusively to the accommodation of specifically religious needs, and
only religious students contract, are wholly neutral as between
religious and nonreligious needs.  As the language of the statute
itself demonstrates, silence makes possible not only religious but
nonreligious contemplation -- both "prayer" and "meditation." And by
the very nature of silence, the mind can be directed to wholly
nontranscendental matters as well -- to anything from God to homework
to the girl or boy next door.  See Gaines v. Anderson, 421 F. Supp. at
342-343.  Thus in no way do moment of silence statutes "confer any
imprimatur of state approval of religious sects or practices." Widmar
v. Vincent, 454 U.S. 263, 274 (1981).

   /14/ The Alabama statute requires no gesture or posture that might
limit the usefulness of the moment of silence to adherents of some
religions.  Cf. May v. Cooperman, 572 F. Supp. at 1571-1572.  The
district court in May found as a fact that the moment of silence
instituted under New Jersey law is unsuitable for prayer by persons of
some religious faith (ibid.), but provided no examples of religions
that do not consider silent prayer as at least one acceptable mode.
But even assuming that there are such, the court's further conclusion
that the moment of silence "prevents others from engaging in their
form of prayer" (id. at 1575) is patently untrue.  Adherents of such
faiths, like those of no faith at all, remain free to meditate on
secular subjects.  Their religious liberty, even if not enhanced by
the moment of silence, is in no way diminished.

   /15/ Pluralism in a different sense would also be encouraged by
holding that the states may provide for a moment of silence.  There is
no need for nationwide uniformity on the moment of silence.  As the
district court observed in May v. Cooperman, 572 F. Supp. at 1568,
attitudes toward such an exercise vary markedly from state to state
and even from community to community.  Experience has shown that in
some communities, the moment of silence is widely accepted and useful
in promoting its purposes (see, e.g., id. at 1566-1567 (Sayreville,
New Jersey));  in others, it has led to some resistance (see, e.g.,
id. at 1566-1567 (Princeton, New Jersey)).  The Alabama statute
(unlike some other state statutes) permits the individual teacher to
make the decision whether to conduct the moment of silence, thus
enabling teachers to adapt to the particular needs of the class.  See
NYU Note App. at 407-408 (classifying state statutes according to
wheter the moment of silence is required for all classrooms, or if
not, whether the discretion is vested in the teacher, the principal,
or the school board).

   /16/ Some state moment of silence statutes include the word
"prayer";  some do not.  See NYU Note App. at 407-408.  We do not
believe the presence or absence of the word is constitutionally
significant.  Compare Gaines v. Anderson, supra (upholding moment of
silence statute containing the word "prayer") with May v. Cooperman,
supra (striking down moment of silence statute containing no reference
to "prayer" or any other form of religious activity).  A statute
mentioning prayer as the only use of the moment of silence or
purporting to prohibit non-religious uses of the time would, of
course, present a different question.

   /17/ The court made no findings under the "entanglement" prong of
the test.

   /18/ The district court's finding, in turn, was predicated on a
single statement by a legislator "that his purpose in sponsoring
Section 16-1-20.1 was to return voluntary prayer to the public
schools.  He intended to provide children the opportunity of sharing
in their (sic) spiritual heritage of Alabama and of this country"
(J.S. App. 71d).  The district court made no findings regarding
legislative purpose in its final decision.

   /19/ Some states and school administrators have also concluded that
a moment of silence is an appropriate way to prepare the children for
the serious work of the day, apart from considerations of religious
accommodation.

   /20/ This testimony is not a part of the legislative history of the
bill and cannot be considered an authoritative guide to its
interpretation under Alabama law.  James v. Todd, 267 Ala. 495, 506,
103 So.2d 19, 28-29 (1957).

   /21/ It is neither unusual nor suspicious that legislatures should
pursue their policies by other means when one approach has been
invalidated by the courts.  See, e.g., Wolman v. Walter, 433 U.S. 229,
233 (1977) (footnote omitted) ("Section 3317.06 (Ohio Rev. Code Ann.
(Supp. 1976)) was enacted after this Court's May 1975 decision in Meek
v. Pittenger, supra, and obviously is an attempt to conform to the
teachings of that decision.");  Bellotti v. Baird, 443 U.S. 622, 625
(1979) (after Roe v. Wade, 410 U.S. 113 (1973), state legislature
passed a statute "intended to regulate abortions 'within present
constitutional limits'").  Under most circumstances, the state may not
merely reenact the same statute with a bowdlerized legislative history
purporting to establish a legitimate public purpose (cf. Palmer v.
Thompson, 403 U.S. 217, 225 (1971));  however, where the state adopts
a provision that is substantively distinguishable from the prior
legislation (as a moment of silence is from the prior school prayer
and Bible reading exercises), the new provision should be considered
on its own merits and not deemed unconstitutional simply because it
was passed as a substitute for invalidated legislation.

   /22/ See Br. for the United States as Amicus Curiae in Estate of
Thornton v. Caldor, Inc., supra, at 24-29.

   /23/ See note 7, supra.

   /24/ A study was performed of the moment of silence as practiced in
a New Mexico school district.  Based on televised observations of
student reaction and structured interviews, the researchers concluded
that up to 20% of the students "assumed positions which could be
interpreted as having the probability of being a religious act," but
that "most persons viewed the moment of silence as simply silence and
not as prayer." May v. Cooperman, 572 F. Supp. at 1568 (footnote
omitted).

   /25/ Some courts seem to be moved by a nervous overestimation of
the seductive and coercive power of religious expression -- an
attitude which stands in striking contrast to the view frequently
expressed in other contexts that our people do not need to be shielded
from uninhibited and robust expression.  Compare Brandon v. Board of
Education, 635 F.2d 971, 978 (2d Cir. 1980), cert. denied, 454 U.S.
1123 (1981) (voluntary student religious group may not meet on school
grounds before school;  impressionable youngsters will be vulnerable
to peer pressure and to perceptions of official endorsement of
religion), with Gambino v. Fairfax County School Board, 429 F. Supp.
731, 736-737 (E.D. Va. 1977);  Bayer v. Kinzler, 383 F. Supp. 1164
(E.D. N.Y. 1974), aff'd, 515 F.2d 504 (2d Cir. 1975) (school
authorities may not prevent student newspaper from printing articles
on sexual activity and birth control;  authorities' fears that
official status of newspaper could lead to undue pressure or
misunderstanding by students unfounded).

   /26/ It was precisely in the context of public schools that this
Court commended efforts to encourage and cooperate with the religious
needs of students as "follow(ing) the best of our traditions." Zorach,
343 U.S. at 314.