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Coalition StatementNovember 7, 2001 Conferees on H.R. 1, the “Leave No Child Behind Act of 2001” . Dear Conferee: The undersigned organizations, representing millions of education advocates, parents, teachers, school administrators, educators and other people concerned about the education of our children and civil and religious liberties, are writing to express our concerns about the school-prayer provision agreed upon by conferees to H.R. 1, the “Leave No Child Behind Act of 2001,” on October 30, 2001. We urge conferees to revisit this issue prior to final approval of H.R. 1 by the conference and restore to H.R. 1 the Senate-passed version located in Sec. 13 of Uniform Provisions. The Senate-passed language is a more balanced, constitutional approach, and is also current law. In current law and in the Senate bill, school districts lose their federal funding if they are found to have violated a federal court order regarding “a violation of the constitutional right of any student with respect to prayer in public schools.” The agreement reached by the conference, however, would alter this carefully crafted and balanced approach and place school officials in an unfair and untenable position. Moreover, this compromise language is unnecessary, as current law quite sufficiently provides adequate constitutional and statutory protections against violations of the right of voluntary prayer. The compromise language reached last week in conference provides that the Department of Education shall issue a “guidance” on the issue of school prayer every two years—subject to approval only by the Department of Justice. School districts would then have to certify that they will comply with the guidance; if they fail to certify or are later found not to be in compliance with that certification, they can then be subjected to unspecified penalties. First, this language for the first time gives the guidance issued by the Department the force of law. As such, it is appropriate and necessary that the guidance be subject to a public “notice-and-comment” period prior to being issued in final form. Individuals, groups and especially schools that will have to operate under this guidance ought to be able to have input into this subjective interpretation of the Constitution before being forced to observe its requirements. That this area of the law is very complicated is evidenced by the fact that the courts—the branch of government with the constitutional responsibility for making such determinations of constitutionality—continue to struggle with the details of it, as they have done for decades. Second, the enforcement clause of the compromise language is ambiguous at best, and leaves open the possibility that school districts that make the wrong guess following an honest attempt to comply with the law could be subjected to a wide range of unspecified—and potentially severe—penalties. Ultimately, we believe that this language will allow individuals or groups wishing to promote captive audience or other organized prayer in public schools merely to allege that a local school district has violated its certification in order to draw school officials into administrative and other battles. In fact, this provision could actually encourage violations of the First Amendment’s Establishment Clause, as local school officials understandably fearful of being caught in such disputes would often choose to err on the side of permitting various forms of coercive prayer. These actions, in turn, would foster even more litigation against local school districts, and would thus force districts to reallocate funds away from programs designed to improve academic performance. For these reasons, we urge the conferees revisit this issue prior to the conclusion of the conference on H.R. 1 and retain current law and adopt the identical Senate-passed language found in sec. 13 of Uniform Provisions. Sincerely, American Association of School Administrators
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