Abington v. Schempp: A Study in the Establishment Clause
A little more than 25 years ago, the Supreme Court heard a series of First Amendment cases related to school prayer and Bible reading. In a concurring opinion in one of these cases, Justice William J. Brennan declared that "the Court’s historic duty to expound the meaning of the Constitution has encountered few issues more intricate or more demanding than that of the relationship between religion and the public schools." Nevertheless, a succession of cases affecting religion and public schools are appealed to the Court, heard by the justices, and decided year after year.
Our students need a historical framework of First Amendment freedom-of-religion cases in order to understand recent decisions made by the courts. Beginning with the first major case involving the establishment clause of the First Amendment brought before the Supreme Court in 1947, Everson v. Board of Education, the justices have used a broad construction of the clause. Justice Hugo Black’s opinion in that case clearly describes this construction:
The ’establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ’a wall of separation between church and State.’
In the Everson case, the Court nevertheless upheld the State of New Jersey parochial school busing plan on the basis that the assistance was to the child, not to a religion. In 1948 and 1952, the Court heard two cases involving released time for religious instruction. In the first case, McCollum v. Board of Education, the Illinois program was declared unconstitutional because the instruction was given within the school building. On the other hand, in the second case, Zorach v. Clauson, the New York program was upheld as constitutional because the instruction was outside the state-owned school facility. Thus the Court established a test to determine the extent to which the public school may accommodate religious education during the school day, a distinction used by the Courtlater in the Schempp decision.
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A cluster of Bible-reading and prayer cases was decided in 1962 and 1963. The New York Regents’ prayer written for that state’s public schools was ruled in violation of the First Amendment in Engle v. Vitale, June 1962. Then in the October 1962 term, the Court struck down a Pennsylvania law requiring the daily reading without comment of ten verses from the Bible followed by a recitation of the Lord’s Prayer. The opinion for the second case, Abington Township, Pennsylvania v. Schempp, and its companion case in Maryland, Murray v. Curlett, was written by Justice Tom C. Clark. The Court’s conclusion, as enunciated by Justice Clark, was based on the facts that the exercises were required, the students recited the exercises in unison, the exercises were held in public buildings, and the exercises were supervised by state-paid teachers.
In none of these cases, however, did the Supreme Court rule voluntary prayer unconstitutional. Furthermore, the Court did not rule against teaching about religion in public schools. Concerning this, Justice Clark wrote, "it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization." A number of educational organizations, including NCSS, have developed guidelines for teaching about religions in the public school curriculum. For a copy of the NCSS position statement and guidelines, write to NCSS headquarters.
The issue of Bible reading and prayer in the public schools is reflected more immediately by a proposed constitutional amendment permitting organized prayer in the public schools, the recent court cases in New Jersey (Karcher v. May) and Alabama (Wallace v. Jaffree), and the continuing confusion over the meaning of the establishment clause.
The document reproduced here is a portion of Justice Clark’s opinion of the Court in the Schempp case. Located in the National Archives, the opinion is part of the Records of the U.S. Supreme Court, Record Group 267, Appellate Case Files, No. 142, O.T. 1962.
Additional religious freedom documents along with teaching suggestions may be found in a National Archives documentary teaching package entitled The Constitution: Evolution of a Government. For more information, contact the Education Branch, National Archives and Records Administration, Washington, DC 20408; or call 202-523-3347.
Teaching Suggestions
1. Prepare a worksheet listing the following items for analyzing the document: type of document, author of the opinion, to whom the document was written, audience for whom it was written, what cases were decided, justification for hearing both cases as one, decisions rendered, constitutional basis for considering the case; summary statements of reasons for decision, and three unfamiliar legal terms used in the document and their definitions. Photocopy a worksheet and a copy of all three pages of the document for each student and ask students to complete the worksheet while carefully reading the document.
2. Direct students to find out the story of the Schempp case. Give the students a chance to tell the story aloud in class with as many students as possible adding details. Ask the students to summarize the story along with the finding of the Court in the case and then conduct an opinion poll among other students and teachers in the school and youths and adults in their neighborhoods and communities to discover the current attitudes toward prayer in the public schools. Compare results of the polls in class.
3. Working with your students, compile a list on the chalkboard or the overhead projector of arguments that could have been used on both sides of the Schempp case. Divide the class into groups of five or six students. Ask students to discuss the argumentsthoroughly and then take a position, pro or con. Encourage each group to reach a consensus rather than take a vote. A recorder from each group should report to the class the groups position and the reasons for taking that position.
4. Use the document and the note to the teacher to help students make a list of establishment clause court cases from Everson to the most recent. Prepare a data-retrieval chart that includes the following items of information to be gathered for each of the cases: date, original jurisdiction of case, principal figures in the dispute, circumstances surrounding the issue, decision reached by the Court, basis of the decision, and changes in legal interpretation of the issue. After assembling the information, the students could chart a time line in the classroom tracing the history of the interpretation of the establishment clause and indicating the changes in interpretation during the past 40 years.
5. Beginning with the statements made by Justice Clark in the document, conduct a class discussion on the Court’s position on teaching about religion in the public schools. Instruct students to gather information from a variety of sources on what is the legal, ethical, appropriate, and responsible place of religion during the school day and on the school campus.
6. For further study, you might direct students to research additional religious freedom issues related to education raised in court cases, such as released time, equal access to public facilities, teaching of evolution versus creationism, tuition tax credits to parents of students in private sectarian schools, and public financial grants to religious bodies.