What then would happen if the first thing in the morning a student were to stand up and read a passage from his Bible and recite the Lord's Prayer? Should the teacher, with her "persuasive" powers suppress such a student, or would such action by the teacher violate the individual's right of free speech?
In a recent holding, the Supreme Court has indicated that a public demonstration by students antipathetic to the Government's policy in Vietnam, as reflected by wearing black armbands, was a right which a school district could not suppress in view of the fact that the demonstration was not disruptive and did not impinge upon the rights of others. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)
So, too, a radical demonstration of personal dress or physical appearance may not be suppressed by school authorities. Breen v. Kahl, 419 F.2d 1034, C.A. 7, 1969; Griffin v. Tatum, 300 F. Supp. 60 (M.D.Ala.1969); Zachry v. Brown, 299 F. Supp. 1360 (N.D.Ala.1967); Richards v. Thurston, 304 F. Supp. 449 (N.D.Mass.1969). Also, the use of reading materials containing what would ordinarily be considered profane language by a teacher in his classroom may be a protected privilege in view of the circumstances in which the words are employed. Keefe v. Geanakos, 418 F.2d 359, C.A. 1, 1969.
In the instant case, because students and their parents wanted such programming, the Board merely decided to "install Bible reading and some non-denominational mass prayer in the school district." No compulsive words were employed. One finds it difficult to interpret the dictates of the First Amendment in such a light as would favor an individual against many, where injury or prejudice suffered by this extremely small minority is either non-existent or slight in comparison with the desire of the overwhelming majority who feel that in this day and age a few moments of moral or spiritual stimulation is beneficial and highly desirable. However, we are faced with the cogent argument that the constitutional rights of a single individual must never be sacrificed as against the will of the majority. But we must also be mindful of the fact that the constitutional rights of the majority of the people are as well entitled to protection. While different, the constitutional principle is not unlike the criminal proceedings where we attempt to insure that not a single innocent person be exposed to criminal punishment, even though as a result many criminals escape as threats to the public welfare.
It may be elucidating and inspirational to have Bible readings and prayer recitations in school, and it may well be what an overwhelming majority of the pupils and parents in the school district desire. It may even be that I agree that it would be most beneficial to the students to have these exercises, but I can do nothing more than observe the dictates of our law as interpreted by our Courts.
It may be a fact that the school district wished to install "Bible reading and some non-denominational mass prayer in the school district", and that its purpose was as the School Superintendent described it for the betterment of the "moral and spiritual values of the pupils." It may also be a fact that the amount of public funds for conducting such programs was infinitessimal. But, none of these present legally persuasive elements. What is important is that some legislative element procured, upon school premises, during school sessions, actions sounding in establishment of religion.
While a motion in a school legislative body does not attain the level of a state statute or of a municipal ordinance or, even of the resolution of a political subdivision, such as is the School District, and although a motion may even prescribe a temporary or special rule of conduct, the purpose of the present motion was as equally effective as if it had been of a higher order of legislation.
Mr. Justice Clark writing for the Court in Abington said: "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment." 374 U.S. at 226, 83 S. Ct. at 1574.
The Seventh Circuit considered a similar situation in DeSpain v. DeKalb County Community School District 428, 384 F.2d 836, C.A. 7, 1967, cert. den. 390 U.S. 906, 88 S. Ct. 815, 19 L. Ed. 2d 873 (1968), where it was asked to review a simple verse of thanksgiving without any mention of a Divine Being. The Court in DeSpain stated at page 839:
"It is not to be gainsaid that the verse may have commendable virtues in teaching kindergarten children 'good manners' and 'gratitude', * * *. 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 * * * 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; * * *."
In the present action, the origin of the practice of reading the Bible and encouraging group recitation of the Lord's Prayer was the motion of the School Board of March 17, 1969. Thus, this factor coupled with the fact that the exercises were conducted on school property during school sessions, makes it the action of a political subdivision of the State government and as such within the ambit of the holding of the Supreme Court in Abington, supra. "Although courts are reluctant to interfere with conflicts which arise in the operation of school systems, courts will interfere when such conflicts 'directly and sharply implicate basic constitutional values.'" Breen v. Kahl, supra. The action of the School Board and the school authorities in this case is illegal and must be enjoined.
The First Amendment contains a double admonition. Congress, and by virtue of the Fourteenth Amendment, other legislative bodies, "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
While I am required to declare unconstitutional the legislative action of the School Board and the programs which were brought about by reason of such legislative action, I do not here indicate that the Amendment prohibits the free exercise of religion, since the opposite is true. The Amendment merely makes it unlawful to make a law respecting either the establishment of religion or the prohibiting of the free exercise thereof. Thus, I make no ruling of what effect, if any, the free actions of children, meeting on their own time and of their own volition, even though on school premises, would have. I merely indicate here that such exercises are not proper when conducted by direction of the public school authorities.
This opinion incorporates Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
A final injunction will be granted restraining the School District and all its agents from proceeding with any programs on the school premises during school sessions, by virtue of the motion of the School Board of March 17, 1969.
And now, to-wit, this 18th day of December 1969, for the reasons set forth in the foregoing Opinion, the School Board motion of the Albert Gallatin Area School District dated March 17, 1969, is hereby declared unconstitutional as being in violation of the First Amendment of the Constitution of the United States, and the defendant, the Albert Gallatin Area School District, and all its agents, are hereby enjoined and restrained from directing or causing to be read the Holy Bible, or reciting the Lord's Prayer as part of any ceremony, observance, exercise or school routine, pursuant to such School Board motion; provided, however, that nothing herein contained shall be construed as interfering or prohibiting any students in the free exercise of religion, or from interfering or prohibiting the use of any books or works as educational, source or reference material in the ordinary personal observance by any student of his or her individual choice as of any prescribed time which does not interfere with the ordinary purposes of the School District.
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