Lyle A. Despain and Mary R. Despain, Etc. v. Dekalb County Community School District 428, Etc.

384 F.2d 836

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 22, 1968
• Docket: 15836
• Status: Published

Opinions

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. § 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.¹

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 similar verse by kindergarten teachers in the Laboratory School at Northern Illinois University was prohibited in 1964.

The district judge decided 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,” because, among other reasons, “[t]he 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.” 255 F.Supp. at 656-657. The judge made the further statement:

[T]his 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. Id. at 664.

Both in School Dist. of Abington Tp., Pa. v. Schempp, supra, and in Engel v. Vitale, supra, the Supreme Court admonished the state to observe strict neutrality with respect to religion in public schools. Mr. Justice Clark, speaking for the Court in Schempp, referred to the fact that the Supreme Court has consistently held that the establishment clause in the first amendment withdrew all legislative power respecting religious belief or the expression thereof. He then stated the test:

[W]hat 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. 374 U.S. at 222, 83 S.Ct. at 1571.

Mr. Justice Black, speaking for the Court in the earlier Engel ease, reviewed the historical purposes underlying the establishment clause. There he wrote:

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of govemmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. 370 U.S. at 431, 82 S.Ct. at 1267.

Neither the Engel nor the Schempp decision was an attack upon Christianity, religion, or prayer; those cases merely articulated within factual contexts the principles of the first amendment, which was designed to provide a bulwark against those who wish to impose their religious beliefs upon others through governmental action. Thus Mr. Justice Black continued in Engel:

It is neither sacrilegious nor anti-religious 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 guidance. Id. at 435, 82 S.Ct. at 1269.

With these Supreme Court pronouncements in mind, an application of the test laid down by Mr. Justice Clark in Schempp to the facts of this case convinces us that the so-called “secular purposes” of the verse were merely adjunctive and supplemental to its basic and primary purpose, which was the religious act of praising and thanking the Deity.

It is not to be gainsaid that the verse may have commendable virtues in teaching kindergarten children “good manners” and “gratitude,” to use Mrs. Watne’s words. The fact, however, that children through the use of required schoolroom prayer are likely to become more grateful for the things they receive or that they may become better citizens does not justify the use of compulsory prayer in our public school systems. As the plaintiffs point out, if prayers which tend to teach and inculcate these virtues are not within the ambit of the bar imposed by the first amendment against such religious activity, any religious activity of whatever nature could be justified by public officials on the basis that the activity has beneficial secular purposes; as a result the Supreme Court’s admonitions in Engel and Schempp would become meaningless.

The Second Circuit in Stein v. Oshinsky, 348 F.2d 999 (2d Cir.), cert. denied, 382 U.S. 957, 86 S.Ct. 435, 15 L.Ed.2d 361 (1965), was presented with a problem similar to the one with which we are faced. In that case a principal of a New York City school ordered the kindergarten teachers, in the language of the complaint, “to stop the infant children from reciting the simple and ancient'prayer: ‘Thank You for the World so Sweet, Thank You for the Food We Eat, Thank You for the Birds that Sing — Thank You, God, for Everything.’ ” The plaintiffs, parents of children attending the school, demanded that the school officials give their children an opportunity to recite voluntary prayers in the classroom. When the school officials ignored the demand, suit was instituted in the federal court to force them to grant it. The district court granted the requested relief. The court of appeals reversed the decision, holding that neither the free exercise clause nor the guarantee of freedom of speech of the first amendment requires a state to permit students to engage in public prayer in state-owned facilities “whenever and wherever they desire.” In the course of its opinion, the court stated:

Determination of what is to go on in public schools is primarily for the school authorities. Against the desire of these parents that their children “be given an opportunity to acknowledge their dependence and love to Almighty God through a prayer each day in their respective classrooms,” the authorities were entitled to weigh the likely desire of other parents not to have their children present at such prayers, either because the prayers were too religious or not religious enough; and the wisdom of having public educational institutions stick to education and keep out of religion, with all the bickering that intrusion into the latter is likely to produce. 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. Id. at 1002.

It will be noted that the verse with which the Second Circuit was concerned and the verse at issue here are identical except that in Oshinsky the last line contained the word “God.” We think this is a distinction without a difference in view of the testimony of Mrs. Watne and the theologians who appeared as witnesses.

The district court characterized this ease as de minimis. We are tempted to agree. Certainly, this verse was as innocuous as could be insofar as constituting an imposition of religious tenets upon nonbelievers. The plaintiffs have forced the constitutional issue to its outer limits. We are reminded, however, of what the Supreme Court said in Schempp:

[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. * * * 374 U.S. at 225, 83 S.Ct. at 1573.

With respect to this facet of the case we also have in mind what the Court said in Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 91 L.Ed. 711 (1947): “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

The judgment of the district court is reversed.

1 . The conflicts in the evidence relating to the conduct of the children during the recitation of the verse were resolved in the defendants’ favor by the district judge. We believe that the attitude of the children during recitation is immaterial to a determination of the ultimate question which we must decide: Was the required recitation of the verse a proscribed public school activity?