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Despain v. Dekalb County Community School District 428

July 26, 1967


Schnackenberg, Swygert, and Fairchild, Circuit Judges. Schnackenberg, Circuit Judge, (dissenting).

Author: Swygert

SWYGERT, Circuit Judge.

The plaintiffs, Lyle A. DeSpain and Mary R. DeSpain, are residents of DeKalb, Illinois. They are the parents of Laura I. DeSpain, who at the time the complaint was filed, was five years old and attended kindergarten class at the Ellwood Public School, located in DeKalb County Community School District 428. The plaintiffs brought this action under 28 U.S.C. ยง 1343(3) to enjoin the officials of the school district from requiring the plaintiffs' child to recite a prayer during regular school hours. Besides the school district, individually named defendants include the members of the Board of Education and the superintendent of schools, the principal of the Ellwood Public School, and the kindergarten teacher, Esther Watne, who instructed Laura I. DeSpain.

Following a consolidated evidentiary hearing on the request for temporary and permanent injunctive relief, the district court dismissed the plaintiffs' complaint for failure to state a cause of action. DeSpain v. DeKalb County Community School Dist. 428, 255 F. Supp. 655 (N.D.Ill.1966). The court ruled that a verse which Mrs. Watne, the kindergarten teacher, required the children in her class to recite prior to their morning snack is "not a prayer or religious activity within the meaning of the Constitution. * * *" The verse read:

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.

We are of the view that the verse is a prayer and that its compulsory recitation by kindergarten students in a public school comes within the proscription of the first amendment, as interpreted by the Supreme Court in the "school prayer" cases. School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962). Accordingly, we reverse.

The evidence showed that for several years prior to the 1965-66 school year Mrs. Watne required the children in her kindergarten class to recite a verse identical to the above-quoted verse except that the last line read, "We thank you, God, for everything." In 1964 Mrs. Watne deleted the word "God," after the plaintiffs complained to Mrs. Watne, the superintendent of schools, the principal, and the Board of Education that the DeSpains' eldest son, then a kindergarten student, was required to recite the verse.

Mrs. DeSpain, who visited the kindergarten class on two occasions, and her daughter testified that immediately before and during the recitation of the verse in question the children folded their hands in their laps and closed their eyes. They also testified that at the conclusion of the verse many children said "Amen." The DeSpains' son testified that during the prior year the conduct of the children during the recitation of the verse was the same. On the other hand, several mothers of other children and Mrs. Watne testified that they did not see the children in a reverential attitude, nor did they hear any of the children say "Amen" after the recitation of the verse.*fn1

Dr. A. Donald Davies, an Episcopal priest employed at Seabury Western Theological Seminary, Evanston, Illinois as a professor of Christian Education and Director of the Master of Arts program in Christian Education, testified that a prayer practically identical to the verse recited in Mrs. Watne's class, with the word "God" included in the last line, is found in a manual entitled "God's Love and Care," published by the National Department of Christian Education of the Episcopal church for the training of kindergarten teachers. Dr. Davies further testified that in his opinion the verse at issue is a prayer regardless of the fact that the word "God" was deleted from the last line, that "the intent is to offer thanks to God." In response to a question by the district judge, Dr. Davies stated that if the verse were completely isolated he would not consider it a prayer, but that he would still wonder "what the 'you' was."

Dr. John Burkhart, a Presbyterian minister and a professor of Systematic Theology at McCormick Theological Seminary in Chicago and Curriculum Consultant for the Presbyterian Board of Christian Education, testified that the verse in question is a prayer in "form and intention." He said that "the 'you' which is the functional word in this prayer would be obviously addressed to someone who is thought to provide everything," and that "this is a common definition of God." He added, "It does not stop being a prayer when the word 'God' is removed, since the children who use it as a prayer, other than where it might have been used in the schools, 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."

Mrs. Watne testified that she used the verse in question as part of her program of good citizenship and her "thankfulness" program. She said its purpose is "for appreciation, gratitude, for the whole world that is in front of them [the children]." She added that the verse was used to teach "social manners," and to thank the "helpers who came to our house * * * [to] help us do things * * * like TV repairmen, the plumber, the milkman. * * *" She admitted, however, that the use, purpose, and effect of the verse in question and the verse which contained the word "God" in the last line, were the same. She also said that in her mind the word "you" referred to God and that the verse was used by her to give thanks to a divine being for the wonders of nature, thanks which she hoped to impart to her pupils. She added, "Why shouldn't I tell them to thank Him?"

The superintendent of schools testified that he had heard the poem in question recited "hundred of times" and had "never yet felt that it had any religious connotation to it." He added that "when 'God' is used in the public school * * * it is a neutral kind of thing. There is no kind of theological interpretation of it, except the kind that the individual brings himself to that particular event." He admitted, however, that it would be improper if a plain, ordinary nondenominational prayer is said without comment in the public school by a teacher, and the children are instructed to recite it.

Finally, Edra Lipscomb, a professor in the Education Department at Northern Illinois University, testified that "verses of this kind are commonly used," and that in her opinion "this 'thank you' verse 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. * * *" She admitted, however, that according to her information the use of a very ...

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