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