201 F.Supp. 815 (E.D.Pa. 1962), Civ. A. 24119, Schempp v. School Dist. of Abington Tp., Pa.

Docket Nº:Civ. A. 24119
Citation:201 F.Supp. 815
Party Name:Schempp v. School Dist. of Abington Tp., Pa.
Case Date:February 01, 1962
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

Page 815

201 F.Supp. 815 (E.D.Pa. 1962)

Edward L. SCHEMPP et al.

v.

SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PA., et al.

Civ. A. No. 24119.

United States District Court, E.D. Pennsylvania.

Feb. 1, 1962

Page 816

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

C. Brewster Rhoads, Sidney L. Wickenhaver, Philip H. Ward, III, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., Percival R. Rieder, Abington, Pa., for defendants and School Dist. of Abington.

David Stahl, Atty. Gen. of Pennsylvania, John D. Killian, III, Deputy Atty. Gen., for Superintendent of Public Instruction.

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

Maximillian J. Klinger, Theodore R. Mann, Philadelphia, Pa., for American Jewish Congress, amicus curiae.

Sydney C. Orlofsky, Philadelphia, Pa., for Jewish Community Relations Counsel of Greater Philadelphia, amicus curiae.

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

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

BIGGS, Circuit Judge.

For a full understanding of the problems presented by this case it will be necessary to read our earlier opinions at D.C.1959, 177 F.Supp. 398; D.C.1959, 184 F.Supp. 381; and D.C.1961, 195 F.Supp. 518. To recapitulate events briefly we state that the suit at bar was brought on February 14, 1958, by Edward and Sidney Schempp as parents and natural guardians of the minor plaintiffs, Ellory, Roger and Donna, all residents of Abington Township, Pennsylvania, against the School District of Abington Township, against the Principal of the Abington Senior High School and the Principal of the Huntingdon Junior High School, in Abington Township. The purpose of the suit was to have this court declare unconstitutional Section 1516 of the Pennsylvania Public School Act of March 10, 1949, as it then existed. 24 P.S. § 15-1516. Section 1516 provided for the compulsory reading of ten verses of the 'Holy Bible' at the opening of each public school in the Commonwealth of Pennsylvania on each school day by teachers or by students and prescribed a specific penalty to be imposed on a teacher in case of failure to obey the mandate of the statute.

The Schempps, who are Unitarians, objected to the Bible reading pursuant to the statute on the grounds, among others, that this constituted an establishment of religion and prohibited the free exercise

Page 817

of religion in violation of the First Amendment. We agreed with these contentions and on September 17, 1959, entered a judgment declaring the statute unconstitutional and enjoined its enforcement. See D.C.1959, 177 F.Supp. 398. The defendants appealed to the Supreme Court of the United States. Thereafter Act No. 700 was passed by the General Assembly of Pennsylvania and became effective on December 17, 1959. Thereby the Act of March 10, 1949 was amended. The amending Act provides as follows: '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.' See 24 P.S. § 15-1516 (Supp.1960). Following the enactment of this amendment and certain steps which need not be set out here, the Supreme Court on October 24, 1960, handed down a per curiam opinion and order, 364 U.S. 298, 81 S.Ct. 268, 5 L.Ed.2d 89, vacating our judgment and remanding the case for such further proceedings as might be appropriate in the light of the amending statute.

On January 4, 1961, the plaintiffs moved for leave to file a supplemental pleading under Rule 15(d), Fed.R.Civ.Proc., 28 U.S.C. The supplemental pleading, really a supplemental complaint, provides only for the substitution in the original complaint of the new citation and text of the amended statute in place of the citation and text of the statute as it was prior to amendment and the elimination of all the paragraphs in the complaint relating to Ellory Schempp, he having graduated from the Abington Senior High School. The amendments have been allowed and the supplemental pleading has been filed. For a more detailed description of what took place see D.C.1959, 184 F.Supp. 381, and D.C.1961, 195 F.Supp. 518. The Superintendent of Public Instruction of the Commonwealth of Pennsylvania has been permitted to intervene as a party defendant.

Hearing has been had on the amended pleadings. Evidence has been taken. The case has been fully briefed and argued. It is now ripe for decision.

It is unnecessary to review the evidence taken at the former hearings or to repeat here the findings of fact set out in our first opinion, reported at D.C.1959, 177 F.Supp. 398 et seq. The present Bible reading statute permits a student to be excused from attending Bible reading upon the written request of his parent or guardian. The statute itself contains no specific penalty to be imposed upon the teacher who fails to observe its mandate as was the case prior to the 1959 amendment. The teacher, however, who refuses or fails to obey the mandate of the amended statute may have his contract of employment terminated pursuant to 24 P.S. § 11-1122 (Supp.1960). This is a provision of the Pennsylvania Public School Act which speaks strongly for itself and is set out in the margin. 1

The procedure followed in the Abington Senior High School, following the amendment of Section 1516, did differ somewhat from that which was in effect prior to the amendment. We describe it briefly. The children attending the High School, Roger and Donna included, reported to their 'homerooms' at 8:15 A.M. and a few minutes thereafter the Bible reading began with each pupil seated 'at attention'. The Bible reading consists of reading, without comment, over a loud speaker ten verses of the King James Version of the Bible. Then

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the children stood and repeated, with the public address system leading them, the Lord's Prayer. Next, still standing, the children gave the Flag Salute. They then sat down. Announcements were made and when the announcements were completed the students went to their classrooms for the first classes of the day.

Edward Schempp, the children's father, testified that after careful consideration he had decided that he should not have Roger or Donna excused from attendance at these morning ceremonies. Among his reasons were the following. He said that the thought his children would be 'labeled as 'odd balls" before their teachers and classmates every school day; that children, like Roger's and Donna's classmates, were liable 'to lump all particular religious difference(s) or religious objections (together) as 'atheism" and that today the word 'atheism' is often connected with 'atheistic communism', and has 'very bad' connotations, such as 'un-American' or 'anti-Red', 2 with overtones of possible immorality. Mr. Schempp pointed out that due to the events of the morning exercises following in rapid succession, the Bible reading, the Lord's Prayer, the Flag Salute,...

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