United States District Court, Northern District of Illinois, E.D
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,
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
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.
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
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 close their eyes. They were told many times during
the day to fold their hands in their laps. There were many verses
recited during the day when they put their hands in their laps.
Mrs. Watne testified at length as to her curriculum and
activities in the conduct of her class. As to the meal time, she
"The little hosts and hostesses serve their table.
They have to count the children at the table, and
then they go back and serve the napkins and then they
pass the straws. And, of course, I try to have them
go to the left side * * * for social manners.
"And then they pass the box of straws, and a little
plate of graham crackers, or salty crackers, whatever
we happen to have that day.
"And then the little hosts and hostesses put the
milk on the table. In the meantime, I am going around
saying, `Now be sure that our hands are in our laps.'
If the hands are not in the laps then all the straws
and the napkins and the crackers are out on the
floor. And it is not only saving me from wasting
crackers and napkins and so forth, and time, but it
is teaching the child social manners.
"And when all the children in all of the room are
served, then I say" the verse.
She stated that the purpose of including the poem at that
particular time "is for appreciation, gratitude, for the whole
world that is in front of them."
She pointed out that the small child has just emerged from the
circle of his home and now encounters the world, the twenty-nine
other pupils, and the various teachers and the nurse, who are
their "helpers," as are the helpers who come to their home, like
the TV repairman, the plumber, and the milkman.
She further testified no child crossed himself in 1964 or 1965
in her room. The grace of "We thank thee Lord for this good food.
Amen," was not said in her classroom in 1964. She testified to
the deletion of the word "God" from the verse presently censured,
after Mr. and Mrs. DeSpain complained to the school Board and the
superintendent of schools and the principal. She testified that
the purpose of the recital is to teach the children to be
thankful and grateful for what they receive and is a part of her
"thankfulness program." She went on to say:
"I don't ever discuss any form of religion at all
in my classroom."
She further said:
"It is good citizenship for everybody to wait until
everyone is served in the room, and then we start to
Several parents testified as to their observations on visiting
Mrs. Watne's class. Mrs. Schrowenger visited in February, 1966,
and testified she did not notice the children looking anywhere
special when the verse was said; that their eyes were open; that
she saw no one cross himself and recalled hearing no one say
Mrs. Randall testified that at the time of the verse she could
not see the children's hands but the attitude of their heads was
that they "just sat there looking around or nudging. * * *" Their
heads were not bowed. She saw no child cross himself nor say
Mrs. Carr testified the children had their hands in their laps
and the children "were either looking around the room or at Mrs.
Watne." Their heads were at no time bowed; no child crossed
himself, nor said "Amen." She said the children were looking at
the food and were excited about it.
Mrs. Forster testified she had been to the class five times.
She testified that during the recital of the verse some of the
children were looking at the teacher, some at her, some glancing
sideways at their neighbor's plate to see who had the largest
cookie or something like that. She saw nothing that might be
interpreted as a requirement by Mrs. Watne that the children
close their eyes or assume a devotional attitude; that there was
no difference in the way the children said this verse from any
other; that she heard no child say "Amen."
Defendant Marvin L. Berge, the superintendent of schools of
DeKalb County Community School District 428, had occupied that
position for ten years. He had been a curriculum director of
Elgin, Illinois schools. He had read very thoroughly the Report
of the Commission on Religion in the public schools of the
American Association of School Administrators, a special
committee appointed to study this particular problem and he
followed it as a guide. He testified that "I suspect I
have * * * heard that poem recited hundreds of times in my
experience, and I have never felt
that it had any religious connotation to it."
Mr. Berge further testified that on neither occasion when the
DeSpains visited him did they make complaint that in Mrs. Watne's
room children were crossing themselves. He also felt that it
would not be proper for "a plain, ordinary non-denominational
prayer [to be said] * * * without comment, in the public school
by a teacher and the children * * * instructed to recite it."
When the court asked whether the verse is generally used in the
public schools in connection with an occasion such as the serving
of milk and crackers, he answered, "It is used very extensively
in kindergartens," throughout the school systems with which he
had been associated. He had first heard the verse back in about
Defendant George P. Riccio, principal of the Ellwood Public
School, testified to Mrs. DeSpain's objection to the recital of
the verse, but there was no complaint made about the children
crossing themselves or assuming a devotional attitude. He further
testified as to his observation of the children and stated, "They
were seated at a table and they were having a conversation and
visiting with one another. Their hands were in their laps." He
said the position of their heads was up, that he never saw anyone
take a devotional attitude and saw no one cross himself.
Mrs. Eychaner, a member of the Board of Education, testified as
to the plaintiffs' appearance before the Board and that they made
no complaint of any child making the sign of the cross. She
further testified that the Board "believed we were operating
within the law and obeying the Supreme Court decision and that
this was within the teacher's right to conduct her classroom
according to her curricular standards" as long as she obeyed the
Mr. Montavon, a farmer, president of the Board, stated his
testimony would be the same as Mrs. Eychaner.
Dr. Edra Lipscomb, who holds a certificate in primary
kindergarten work, a professor in the Educational Department at
Northern Illinois University, testified that verses of the kind
alleged in the complaint are commonly used, and the teachers had
not considered it a prayer exercise. At a kindergarten workshop
she had inquired of forty kindergarten teachers how many used
verses such as this and they all said they did. The thank you
verse, she testified, "would certainly fit part of this
philosophy of helping the children not [only] prepare themselves
for life but actually become a part of the living society." On
cross-examination she testified that kindergarten teachers were
instructed by the Superintendent of the Lab School of Northern
Illinois University not to require the children to use a verse
very similar to this verse.
The Supreme Court opinions have with exhaustive thoroughness
researched the historical background of the Constitutional
Amendments here involved. No discussion by this court could
enhance the subject. The First Amendment to the Constitution
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof * * *." (Emphasis added.)
The Fourteenth Amendment provides:
"Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the
State wherein they reside. No State [shall make or
enforce any law which] shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws." (Emphasis added.)
It is notable that both constitutional provisions contemplate
the proscription of laws in respect to religion. There has been
no law by a governmental body requiring the use of this verse.
not even been a regulation by an educational board, or
superintendent, authorizing its use. The closest it comes to
official action is the omission of a board, superintendent or
principal to bar the use of the verse upon it being brought to
their attention. Its use could be eliminated in a day — which
might be commendable — or it could be once more revised, as it
has heretofore been. Its use has none of the rigidity of a
promulgation by statute or regulation, and therefore no hazard of
Thus in the opinion of the Supreme Court in School District of
Abington Tp., Pa., v. Schempp, 374 U.S. 203, at 220, 83 S.Ct.
1560, 1570, 10 L.Ed.2d 844, the court quotes from an earlier
"`[N]either a state nor the Federal
Government * * * can constitutionally pass laws or
impose requirements which aid all religions. * *'"
On page 222, 83 S.Ct. on page 1571 of the same case, it is
"* * * [I]t has consistently held that the clause
[First Amendment] withdrew all legislative
power respecting religious belief or the expression
thereof. The test may be stated as follows: what are
the purpose and the primary effect of the
enactment? If either is the advancement or
inhibition of religion then the enactment exceeds the
scope of legislative power as circumscribed by the
Constitution. That is to say that to withstand the
strictures of the Establishment Clause there must be
a secular legislative purpose and a primary
effect that neither advances nor inhibits
religion. * * * The Free Exercise Clause, likewise
considered many times here, withdraws from
legislative power, state and federal, the exertion of
any restraint on the free exercise of religion."
In the Schempp case, supra, the state law required that at
least ten verses from the Holy Bible be read, without comment, at
the opening of each school day, but any child could be excused
upon written request from the parent. The Lord's Prayer was also
recited. In the companion case decided in the Schempp case,
supra, the Board of School Commissioners of Baltimore City
adopted a rule providing for the holding of opening exercises
consisting primarily of the reading, without comment, from the
Bible and/or the use of the Lord's Prayer. The court quoted from
a prior opinion, at 216, 83 S.Ct. at 1568:
"* * * [T]he effect of the religious freedom
Amendment to our Constitution was to take every form
of propagation of religion out of the realm of things
which could directly or indirectly be made public
business and thereby be supported in whole or in part
at taxpayers' expense. * * *"
It is said, at 218, 83 S.Ct. at 1569:
"* * * [P]ublic schools are organized `on the
premise that secular education can be isolated from
all religious teaching so that the school can
inculcate all needed temporal knowledge and also
maintain a strict and lofty neutrality as to
It is further stated, at 219, 83 S.Ct. at 1570:
"`* * * [T]he Constitution * * * prohibited the
Government common to all from becoming embroiled,
however innocently, in the destructive religious
conflicts * * *."
In the Schempp case, supra, it was said, at 220, 83 S.Ct. at
"* * * [N]either a State nor the Federal Government
can constitutionally force a person `to profess a
belief or disbelief in any religion.' Neither can
constitutionally pass laws or impose
requirements which aid all religions as against
non-believers, and neither can aid those religions
based on a belief in the existence of God as against
those religions founded on different beliefs. * * *"
It is said, at 224, 83 S.Ct. at 1572:
"The conclusion follows that in both cases the
laws require religious exercises and such
exercises are being conducted
in direct violation of [constitutional]
rights * * *.
"* * * [I]t is no defense to urge that the
religious practices here may be relatively minor
encroachments on the First Amendment. The breach of
neutrality that is today a trickling stream may all
too soon become a raging torrent * * *." (Emphasis
Justice Brennan in his concurring opinion states, at 230, 83
S.Ct. at 1576:
"* * * It is therefore understandable that the
constitutional prohibitions encounter their severest
test when they are sought to be applied in the school
He further stated, at 231-232, 301, 83 S.Ct. at 1576:
"* * * [T]he line which separates the secular from
the sectarian in American life is elusive. * * *"
"* * * While it is my view that not every
involvement of religion in public life is
unconstitutional, I consider the exercises at
bar a form of involvement which clearly violates the
"We do not, however, in my view usurp the
jurisdiction of school administrators by holding as
we do today that morning devotional exercises in any
form are constitutionally invalid." (Emphasis added.)
The court appreciates the danger inherent in seemingly
innocuous practices. Thus the Supreme Court in Engel v. Vitale,
370 U.S. 421
, at 436, 82 S.Ct. 1261, at 1270, 8 L.Ed.2d 601
(1962), quoted from James Madison, the author of the First
Amendment, that "`[I]t is proper to take alarm at the first
experiment on our liberties.'"
In Chamberlin v. Dade County Board of Public Instruction,
377 U.S. 402, 84 S.Ct. 1272, 12 L.Ed.2d 407 (1964), the Supreme Court
in a per curiam opinion held that devotional Bible reading, which
was required by statute in the Florida public schools, was
unconstitutional, basing its decision on the Schempp case, supra.
In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962), it was held that because of the prohibition of the First
Amendment against the enactment of any law "respecting an
establishment of religion," which is made applicable to the
States by the Fourteenth Amendment, state officials may not
compose an official state prayer and require that it be recited
in the public schools of the State at the beginning of each
school day — even if the prayer is denominationally neutral and
pupils who wish to do so may remain silent or be excused from the
room while the prayer is being recited. In that case, the Board
of Education, acting in its official capacity under state law,
directed the school district's principal to cause the prayer to
be said aloud by each class in the presence of the teacher at the
beginning of each school day. The prayer was:
"Almighty God, we acknowledge our dependence upon
Thee, and we beg Thy blessings upon us, our parents,
our teachers and our Country."
The court cited the fact that the procedure was adopted on the
recommendation of the State Board of Regents, a governmental
agency created by the State Constitution to which the New York
legislature has granted broad supervisory, executive, and
legislative powers over the state's public school system. The
officials composed the prayer which they recommended and
published as a part of their "Statement on Moral and Spiritual
Training in the Schools." The parents there complaining
challenged the constitutionality of both the state law
authorizing the School District to direct the use of prayer in
public schools and the School District's regulation ordering the
recitation of this particular prayer.
The Supreme Court there said, at 424-425, 82 S.Ct. at 1264.
"* * * There can, of course, be no doubt that New
York's program of daily classroom invocation of God's
blessings as prescribed in the Regents'
prayer is a religious activity. It is a solemn
avowal of divine faith and supplication for the
blessings of the Almighty." (Emphasis added.)
"* * * [T]he constitutional prohibition against
laws respecting an establishment of religion must at
least mean that in this country it is no part of the
business of government to compose official prayers
for any group of the American people to recite as a
part of a religious program carried on by
government." (Emphasis added.)
It further said, at 430, 82 S.Ct. at 1266:
"* * * Under that Amendment's prohibition against
governmental establishment of religion, as reinforced
by the provisions of the Fourteenth Amendment,
government in this country, be it state or federal,
is without power to prescribe by law any
particular form of prayer which is to be used as an
official prayer in carrying on any program of
governmentally sponsored religious activity.
"There can be no doubt that New York's state prayer
program officially establishes the religious
beliefs embodied in the Regents' prayer. * * * The
Establishment Clause, unlike the Free Exercise
Clause, does not depend upon any showing of direct
governmental compulsion and is violated by the
enactment of laws which establish an official
religion whether those laws operate directly to
coerce nonobserving individuals or not." (Emphasis
It stated at, 431-432, 82 S.Ct. at 1267:
"* * * The Establishment Clause thus stands as an
expression of principle on the part of the Founders
of our Constitution that religion is too
personal * * * to permit its `unhallowed perversion'
by a civil magistrate."
It stated at 433, 435, 82 S.Ct. at 1265:
"* * * The New York laws officially prescribing the
Regents' prayer are inconsistent both with the
purposes of the Establishment Clause and with the
Establishment Clause itself."
"* * * It is neither sacrilegious nor antireligious
to say that each separate government in this country
should stay out of the business of writing or
sanctioning official prayers and leave that purely
religious function to the people themselves and to
those the people choose to look to for religious
The People of State of Ill. ex rel. McCollum v. Board of
Education, 333 U.S. 203
, 68 S.Ct. 461, 92 L.Ed. 649 (1948), case
held that the utilization of the State's tax-supported public
school system and its machinery for compulsory public school
attendance to enable sectarian groups to give religious
instruction to public school pupils in public school buildings
violates the First Amendment of the Constitution, made applicable
to the states by the Fourteenth Amendment. In that case, with the
permission of a Board of Education, granted under its general
supervisory powers over the use of the buildings, religious
teachers, employed subject to the approval and supervision of the
superintendent of schools by a private religious group including
representatives of the Catholic, Protestant and Jewish faiths,
gave religious instruction. Pupils whose parents so requested
were excused from their secular classes during the periods of
religious instruction and were required to attend the religious
classes; but other pupils were not released from their public
school duties, which were compulsory under state law. In that
case, it was an admitted fact that the challenged program of
religious instruction was not expressly authorized by statute.
The court said, at 210, 212, 68 S.Ct. at 465:
"No tax in any amount, large or small, can be
levied to support any religious activities * * *
whatever form they may adopt to teach or practice
"Here not only are the state's tax-supported public
school buildings used
for the dissemination of religious doctrines. The
State also affords sectarian groups an invaluable aid
in that it helps to provide pupils for their
religious classes through use of the State's
compulsory public school machinery. This is not
separation of Church and State."
The Second Circuit case, Stein v. Oshinsky, 348 F.2d 999
(1965), was an action by parents to enjoin school officials from
preventing the recitation of prayers on the children's
initiative. The District Court had granted summary judgment to
the parents, which judgment was reversed on the ground that the
constitutional rights to free exercise of religion and to freedom
of speech do not require a state to permit "student-initiated"
prayers in public schools. The poem there involved was similar to
the one formerly used by Mrs. Watne, including the reference to
God. The court called it "the simple and ancient prayer." The
principal ordered it stopped being said in kindergarten. The
court said, at 1001:
"We likewise cannot sustain defendants' contention
that the complaint did not sufficiently raise a claim
of denial of constitutional rights to the free
exercise of religion and to freedom of speech * * *."
"[W]e shall assume, arguendo, in plaintiffs' favor
that the Establishment Clause would not prohibit New
York from permitting in its public schools prayers
such as those here at issue. Nevertheless New York is
not bound to allow them unless the Free Exercise
Clause or the guarantee of freedom of speech of the
First Amendment compels.
"Neither provision requires a state to permit
persons to engage in public prayer in state-owned
facilities whereever and whenever they desire."
The court pointed out, at 1002:
"Determination of what is to go on in public
schools is primarily for the school
authorities. * * * The authorities acted well within
their powers in concluding that plaintiffs must
content themselves with having their children say
these prayers before nine or after three; their
action presented no such inexorable conflict with
deeply held religious belief * * *. After all that
the states have been told about keeping the `wall
between church and state * * * high and
impregnable,' * * * it would be rather bitter irony
to chastise New York for having built the wall too
tall and too strong." (Emphasis added.)
The court concludes that this is a case de minimis. Despite the
theologians' characterization of this verse as a prayer, the
court believes that set in the framework of the whole school day,
its purpose was not to pray but to instill in the children an
appreciation of and gratefulness for the world about them — the
birds, the flowers, the food, and everything. They asked no
blessing; they sought no divine assistance.
The teacher was exercising her pedagogical function of making
the pupils socially acceptable persons, as well-mannered guests,
grateful in their appreciation of their provider. She sought to
make all wait until the last was served before they began eating,
and then to pause before eating to impress upon them the wonders
of the world about them, including food. The verse might be
compared to those found in "A Child's Garden of Verses" by Robert
Louis Stevenson, entitled, "A Thought":
"It is very nice to think
The world is full of meat and drink,
With little children saying grace
In every Christian kind of place,"
or the couplet, "Happy Thought":
"The world is so full of a number of things
I'm sure we should all be as happy as kings."
A multitude of other poems of similar purport by noted poets
could be cited.
The court believes that this case presents the situation
characterized by Justice Goldberg in the Schempp case,
supra, 374 U.S. at 308, 83 S.Ct. at 1616, thus:
"It is of course true that great consequences can
grow from small beginnings, but the measure of
constitutional adjudication is the ability and
willingness to distinguish between real threat and
mere shadow." (Emphasis added.)
The instant verse seems precisely that: a mere shadow rather than
a real threat.
This is not a case, such as the many precedent outlined above,
of legislative or regulatory fiat that defined religious activity
to be followed. Here was one teacher using a curriculum widely
recognized in kindergartens. It was her choice to utilize the
verse — no legislature, superintendent of schools, Board of
Education or principal demanded its continued use. She felt it
was in accord with all her other exercises in instilling social
realization and graces in the children. Its religious
connotation, if any, was completely incidental to implanting
gratitude in the child for the things about them, irrespective of
who placed them there.
The defendants showed amenability to respecting plaintiffs'
religious beliefs and sought to solve the complaint by deleting
the reference to "God" from the verse, thereby in their eyes
nullifying any imputation of a prayer, but retaining all the
secular aims sought to be achieved. The court would be very
reluctant to substitute its views as to how the aims of this
kindergarten teacher to implant graciousness and gratitude in
very young children should be accomplished. That not only she,
but many others, thought well of this verse is amply demonstrated
in the evidence. Its broad use suggests it was felt to have value
and merit, and was not considered a prayer in a religious sense.
The court is of the opinion that the facts of this case do not
warrant its intervention under the guise of enforcement of
constitutional rights into the educational program of this
kindergarten curriculum. The so-called violation of the rights of
plaintiffs is, if anything, "a mere shadow" rather than "a real
threat" and on this basis the court is asked to become the
arbiter of a kindergarten curriculum. Our system of education has
assumed world preeminence through scholastic independence. If the
courts allow themselves to be injected into a dispute, such as
this, scholastic independence would disappear and our educational
processes become sterile. This was not the intent of the drafters
of the First and Fourteenth Amendments to our Constitution.
In view of this conclusion, it is hereby ordered that the
complaint be dismissed for failure to state a cause of action.
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