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DESPAIN v. DEKALB COUNTY COMMUNITY SCHOOL DIST. 428

June 27, 1966

LYLE A. DESPAIN AND MARY R. DESPAIN, INDIVIDUALLY, AND AS PARENTS AND NATURAL GUARDIANS OF LAURA I. DESPAIN, A MINOR, AND AS TAXPAYERS ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
DEKALB COUNTY COMMUNITY SCHOOL DISTRICT 428, A BODY POLITIC, THE BOARD OF EDUCATION OF DEKALB COUNTY COMMUNITY SCHOOL DISTRICT 428, MARVIN L. BERGE, ESTHER WATNE AND GEORGE P. RICCIO, DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

Decision on Merits on Complaint for Injunction

Plaintiffs seek an injunction against the alleged violation of their constitutional rights by virtue of the recital in the kindergarten class which their child, Laura I. DeSpain, attends, of the following verse, which they deem to be a prayer:

"We thank you for the flowers so sweet;

We thank you for the food we eat;

We thank you for the birds that sing;

We thank you for everything."

The complaint states that defendant Marvin L. Berge is superintendent of schools of DeKalb County Community School District 428; that George P. Riccio is the principal of the Ellwood Public School in DeKalb County Community School District 428, and that Esther Watne is the kindergarten teacher in that school who instructs the child. The complaint further alleges that from the commencement of the 1965-1966 school year until the present date Mrs. Watne has conducted the "prayer" and has required all of her students, including Laura, to fold their hands in their laps, close their eyes and assume a traditional devotional and prayerful attitude immediately prior to its recitation.

It is also alleged that the parents do not believe in the existence of a divine being who hears or responds to prayers or supplications, and that the recitation of the daily prayer constitutes the establishment of a religious practice and inhibits and restricts the free exercise of plaintiffs' religious beliefs and practices. Despite repeated protests by plaintiffs, defendants have failed and refused to stop or prohibit the recitation of the prayer, and unless restrained, will continue to do so, thereby violating plaintiffs' constitutional rights under the First Amendment.

Count II reiterates the foregoing allegations and charges their rights under the Illinois Constitution, Article II § 3, S.H.A., are violated. Plaintiffs are thereby required to support a place of worship without their consent. Count III, in addition to the above allegations, states that plaintiff parents are taxpayers of the State of Illinois, and that a portion of federal taxes is allocated to the School, as well as the state taxes, which action is in derogation of plaintiffs' rights and privileges under the First Amendment to the Federal Constitution and the Illinois Constitution.

The court has heretofore denied the prayer for relief by preliminary injunction. A full hearing has now been had on the merits.

The controversy resolves down to the narrow issue whether the verse above-quoted is to be considered a prayer and if so whether its recital is proscribed by constitutional prohibitions as interpreted by the many decisions.

Preliminarily, it might be said that it is regrettable that this problem could not have been amicably solved by conference between the parties without the interjection of a lawsuit and subjecting small children, the school, and the community to the disturbing influence of litigation. While few things can be considered more important than constitutional rights, infinitesimal invasions which could be rectified by minor adjustment of phraseology, such as the substitution of the word "grateful" for "thank you" in the verse would instill in the child appreciation for the world around him and foreclose all imputation of a prayer. However, in view of plaintiffs' attitude it is doubtful if this would have satisfied them.

It is the defendants' earnest position that this verse is but one of many routinely recited throughout the day aimed to instill in the child his place in society and the community and to inculcate good manners, graciousness, and gratefulness into his character. The many exhibits indicate that through verse, the child is taught to realize his dependence upon tradespeople who serve him: the milkman, the mailman, the plumber, and similar occupations. Further, he is taught to observe natural phenomena, such as rocks, the sun, bird migration, flowers, birds, and other subjects about him. His attention is called to weather conditions: rain, fog, snow, etc. He is taught politeness: to say thanks, pardon me, etc. The secular kindergarten curriculum stresses the saying of thanks. The child is instructed in "finger exercises," which explains, defendants insist, the putting of the child's hands in his lap prior to taking milk and crackers. The gesture is made for the practical purpose of preventing one child partaking of his food before another does so and from spilling the milk or dropping the crackers.

The court concludes that the verse, recited in the setting proved by the testimony in this case, is not a prayer or religious activity within the meaning of the Constitution, and that the instant complaint must be dismissed for failing to state a cause of action. The conclusion is based on these considerations:

1. The teacher used the verse with the prime objective of making the child aware of the beauties of the world around him and grateful for them. The "purpose and primary objective" of the verse was not religious.

2. The aim of inculcating good manners in the children, the mode of proper serving of a meal, and awaiting eating until all were served, and thanking donors of special treats, were paramount in the teacher's purposes.

3. No complaint was made by plaintiffs to the school authorities that the children closed the verse by saying "Amen," by crossing themselves, or that they bowed their heads, all of which leads to the inference that no such acts took place. That conclusion is fortified by testimony of disinterested witnesses, as well as defendants. It is probable that any such acts which may have occurred, and which escaped the teacher's attention, were due to the children's own ideas, or their extracurricular training.

4. The very widespread use of this verse in kindergarten curricula outside of DeKalb is indicative that its use was thought by many to be secular rather than religious.

5. Substantial latitude must be afforded a teacher in her choice of mode of instruction and a court should exercise great care not to proscribe educational freedom.

6. Plaintiffs' complaint states they believe in no form of supplication to a divine being. The court does not believe that the instant verse offends that right, in that it simply expresses gratitude.

The evidence is in complete contradiction as to whether the children took a "devotional attitude" in reciting the prayer. The plaintiffs testified that some of the children said "Amen" at the conclusion of the verse, and some crossed themselves. The defendants, and presumably impartial witnesses called by them — parents of other children — testified that they saw no instance of such action at anytime. Plaintiffs testified the children's heads were bowed; defendants' proof was that the children looked around at each other, at the teacher, or at the food.

The court, therefore, considers the character of the recital without regard to that aspect of the allegations, they not having been convincingly proved. If it were indispensable that a conclusion be drawn on that factor, the court would be inclined to believe that any such action on the part of the child was due to habits formed outside the class, which totally escaped Mrs. Watne's observation, and were certainly beyond her instruction and not the result of any intent on her part. The court is not convinced that such devotional acts actually occurred.

Summary of the Evidence

Father A. Donald Davies, an Episcopal priest, a Professor of Christian Education and Director of the Master of Arts program in Christian Education, employed at the Seabury-Western Theological Seminary, testified directly that the verse with the word "God" in the last line is a prayer, and part of the religious education of Episcopal children. He also stated that the verse recited in the instant complaint is a prayer, and the deletion of the word "God" did not change his opinion that it was a prayer. He felt that even with the word deleted the "intent is to offer thanks to God." He stated the purpose of the prayer is "to guide the children in their understanding of God as a creator, and with an expression or response upon their part in the offering of thanks, in a communication to the deity or to God, and as such I would have to wonder who the `you' is."

However, in answer to a question on cross-examination that on the assumption there is no God, whether it would be useful for a five-year old child to recite the poem in order to get a feeling of integration in his physical environment, he stated that "it is possible that it might be meaningful." In answer to the court's interrogation as to whether the verse, completely isolated, was a prayer, Fr. Davies said: "Completely isolated, I would have to say that it would not be." Nor would it be where it followed the thanking of persons who had made special donations of cakes.

This interrogation occurred in his testimony:

"The court: So taken as an isolated statement, in and of itself, it is not a prayer? Is that your conclusion?

"A. Right, isolated."

Dr. John E. Burkhart, affiliated with the United Presbyterian Church, who is on the faculty of the McCormick Theological Seminary, and Curriculum Consultant for the Presbyterian Board of Christian Education, testified for the plaintiffs. He defined "prayer" thus: "Prayer is that religious activity and/or attitude in which divine powers are addressed explicitly or implicitly, publicly or privately." As to the verse here in question, he stated: "This clearly is a prayer, both in form and intention. * * * The `you' which is the functional word in this prayer would be obviously addressed to someone who is thought to provide everything." He thought it a rather poor adaptation of the verse which first appeared in print in "A Child's Book of Prayers" in 1941 under the name of Mrs. Latham. Many children learn it in Sunday School and "[I]t is, therefore obviously in connotation and usage a religious act. He also said:

    "It does not stop being a prayer when the word
  `God' is removed, since the children who use it as a
  prayer * * * use it and understand it as a prayer.
  So, in common context it is a prayer which has simply
  been modified, but has not lost its prayer
  connotation or meaning."

On cross-examination, another book which had the same verse, copyrighted in 1935, the Silver Book of Songs by a Mrs. Perkins, was the subject of interrogation. The title page stated it was compiled by public school administrators and teachers of music.

Dr. Burkhart further testified:

    "* * * I understand that one is properly grateful
  only to God for everything, if one is a believer. And
  if one is not a believer, such a statement is both
  meaningless and offensive if it is forced on one."
    "It is not clear to me that something becomes a
  prayer by the use of the word `God' or is not a
  prayer if `God' is not mentioned."

Dr. Burkhart answered affirmatively when he was asked by the court whether he deemed the verse a prayer when it was isolated completely and considering it objectively in the form that it presently is in even if he did not know the source from which it came.

Mr. DeSpain, the child's father, testified that when he first visited his son's kindergarten class in the fall of 1964 he heard the children, led by Mrs. Watne, recite "We thank thee Lord for this good food. Amen."

Roger DeSpain, age seven, who had been in the kindergarten the previous year demonstrated in court the children's posture during the saying of the verse and indicated he placed his folded hands near his stomach, bowed his head, eyes closed, and he stated that the children said "Amen" at the close of the verse. Laura DeSpain, who had just turned six, also testified that the children said "Amen" at the close of the verse and sat with their fingers intertwined on their laps and their eyes closed during its recital. Her head, however, was upright. She said they were told to fold their hands "but we thought of the idea of closing our eyes." She testified affirmatively that Mrs. Watne did not tell them to ...


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