Schempp v. School District of Abington Township, Pa., Civ. A. No. 24119.

Citation184 F. Supp. 381
Decision Date16 September 1959
Docket NumberCiv. A. No. 24119.
PartiesEdward Lewis SCHEMPP, Sidney Gerber Schempp, Individually and as Parents and Natural Guardians of Ellory Frank Schempp, Roger Wade Schempp and Donna Kay Schempp v. SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA, c/o James F. Koehler, O. H. English, Eugene Stull and M. Edward Northam.
CourtU.S. District Court — Eastern District of Pennsylvania

Henry W. Sawyer, III, Philadelphia, Pa., Wayland H. Elsbree, Philadelphia, Pa., for plaintiffs.

C. Brewster Rhoads, Philip H. Ward, III, Sidney L. Wickenhaver, Philadelphia, Pa., Percival R. Rieder, Abington, Pa., for defendants.

Lois G. Forer, Philadelphia, Pa., amicus curiæ.

Leo Pfeffer, New York City, Maximillian J. Klinger, Theodore R. Mann, Philadelphia, Pa., for American Jewish Congress, amici curiæ.

Lewis F. Adler, Harrisburg, Pa., for Pennsylvania State Education Ass'n, amicus curiæ.

Anne X. Alpern, Atty. Gen. of Commonwealth of Pennsylvania, by John Killian, III, Deputy Atty. Gen., for the Commonwealth of Pennsylvania.

Before BIGGS, Circuit Judge, and KIRKPATRICK and KRAFT, District Judges.

BIGGS, Circuit Judge.

On September 16, 1959, this court filed an opinion in this case with findings of fact and conclusions of law, 177 F.Supp. 398, adjudging Section 1516 of the Pennsylvania Public School Code of 1949, as amended, 24 P.S.Pa. § 15-1516, to be unconstitutional for the reasons stated, and on September 17, 1959, entered a final decree enjoining the defendants perpetually "from reading or causing to be read, or permitting anyone subject to their control and direction to read, to students in the public schools of Abington Township, Montgomery County, Pennsylvania, any work or book known as The Holy Bible, as directed by Section 1516 of the Pennsylvania Public School Code of March 10, 1949, P.L. 30, as amended, or as part of any ceremony, observance, exercise or school routine; provided, that nothing herein shall be construed as interfering with or prohibiting the use of any books or works as source or reference material." On September 21, 1959, the injunction was stayed pending an appeal to the Supreme Court. On November 12, 1959, the defendants filed a notice of appeal with the Supreme Court and the Clerk of this court on December 9, 1959, transmitted to the Clerk of the Supreme Court a certified copy of the record in this case, less certain original papers. On December 16, 1959, this court ordered its Clerk to transmit the original papers referred to to the Supreme Court as part of the record. On December 19, 1959, the Governor of the Commonwealth of Pennsylvania signed into law Act No. 700 of the Laws of the General Assembly of Pennsylvania passed at the session of 1959 (effective date December 17, 1959) which provides as follows:

"Amending the act of March 10, 1949 (P.L. 30) entitled `An act relating to the public school system including certain provisions applicable as well to private and parochial schools; amending, revising, consolidating and changing the laws relating thereto,' changing the provisions relating to the reading of the Bible in public schools.
"The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
"Section 1. Section 1516 act of March 10, 1949 (P.L. 30), known as the `Public School Code of 1949', amended May 9, 1949 (P.L.939), is amended to read:
"Section 1516. Bible Reading in Public Schools.
"At least ten verses from the Holy Bible shall be read without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian."

On December 23, 1959, this court extended the time for the defendants to file the record and jurisdictional statement and for the docketing of the appeal to and including the sixtieth day after final action taken by this court on the defendants' motion for relief from judgment and final decree under Rule 60(b), 28 U.S.C. See 28 U.S.C. § 1253.

Also on December 23, 1959, the defendants moved for relief from the judgment and final decree of this court of September 17, 1959, pursuant to Rule 60(b), Fed.R.Civ.Proc., 28 U.S.C., asserting in substance that the quoted amendment to the Public School Code has caused the issue in this case to become moot.

On January 4, 1960, the Clerk of this court transmitted certain original papers, hereinbefore referred to as omitted from the record, to the Clerk of the Supreme Court and the complete record in this case was before the Supreme Court.

On March 16, 1960, the plaintiffs filed a request for further findings of fact and conclusions of law relating to the alleged unconstitutionality of Section 1516 of the Pennsylvania Public School Code, as amended. These, if made, would constitute a ruling by this court that the Act as amended is unconstitutional.

On March 18, 1960, a hearing was had upon the defendants' motion for relief of judgment and thereafter it was decided by this court that the issue of whether this court had jurisdiction to proceed in this case, in view of the notice of appeal and certification of the...

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9 cases
  • Fortson v. Toombs
    • United States
    • United States Supreme Court
    • 18 January 1965
    ...as to the jurisdiction of the District Court to enter its modified order while appeal is pending in this Court, see Schempp v. School District, 184 F.Supp. 381 (D.C.E.D.Pa.), the ought also to vacate paragraph (3) of the June 30, 1964, order on the assumption that the District Court will re......
  • United States v. Cavell, 13324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 July 1961
    ...194 F.2d 349, 350; In re Federal Facilities Realty Trust, 7 Cir., 1955, 227 F.2d 651, 653-654; Schempp v. School District of Abington Township, Pa., D.C. E.D.Pa.1959, 184 F.Supp. 381, 383. The admission of the transcript was not a permissible correction of a mistake as contemplated by Rule ......
  • N.L.R.B. v. Cincinnati Bronze, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 21 September 1987
    ...Cir. Dec. 1, 1986) [811 F.2d 607 (table) ], which is attached hereto as Appendix 1.2 CBI's reliance on Schempp v. School District of Abington Township, 184 F.Supp. 381 (E.D.Pa.1960) is misplaced, as this decision was vacated by the Supreme Court. See 364 U.S. 298, 81 S.Ct. 268, 5 L.Ed.2d 89......
  • Quincy Oil, Inc. v. Federal Energy Administration, Civ. A. No. 76-4096-C.
    • United States
    • U.S. District Court — District of Massachusetts
    • 17 July 1979
    ...Workers v. Eagle-Pitcher Mining and Smelting Co., 325 U.S. 335, 65 S.Ct. 1166, 89 L.Ed. 1649 (1945); In Schempp v. School District of Abington Township, 184 F.Supp. 381 (E.D.Pa.1959). The situation here is thus quite different. DOE has withdrawn its reliance upon a regulation which it no lo......
  • Request a trial to view additional results
1 books & journal articles
  • Lawyer Sawyer.
    • United States
    • University of Pennsylvania Law Review Vol. 148 No. 1, November 1999
    • 1 November 1999
    ...1961) (allowing plaintiffs to amend their pleading in light of the statutory amendment). To complete the procedural picture, see also 184 F. Supp. 381 (E.D. Pa. 1959), which preceded the Supreme Court's vacate-and-remand order. There, the district court held that it did not have jurisdictio......

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