Engel v. Vitale

CourtUnited States State Supreme Court (New York)
Citation18 Misc.2d 659,191 N.Y.S.2d 453
PartiesApplication of Steven I. ENGEL, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and Lawrence Roth, Petitioners, v. William J. VITALE, Jr., Philip J. Freed, Mary Harte, Anne Birch and Richard Saunders, constituting the Board of Education of Union Free School District Number Nine, New Hyde Park, New York, Respondents, directing them to discontinue a certain school practice and Henry Hollenberg, Rose Levine, Martin Abrams, Helen Swanson, Walter F. Gibb, Jane Ehlen, Ralph B. Webb, Virginia Zimmerman, Virginia Davis, Violet S. Cox, Evelyn Koster, Irene O'Rourke, Rosemarie Petelenz, Daniel J. Reehil, Thomas Delaney and Edward L. MacFarlane, Intervenor-Respondents.
Decision Date24 August 1959

Butler, Jablow & Geller, New York City, for petitioners.

Charles A. Brind, Jr., Albany, for Board of Regents of University of State of New York, amicus curiae.

Gunn, Neier & Daiker, Port Washington, for respondents.

Hahn, Hahn & Ford, Brooklyn, for intervenor-respondents.

Porter R. Chandler, New York City, Thomas J. Ford, Brooklyn, of counsel.


Does any provision of the United States or New York State Constitution invalidate a school board resolution directing that as a daily procedure, following the salute to the flag, the following prayer be said in the schools of the district: 'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country'?

The attempt to find a commonly acceptable prayer is now new. Madison recorded 'a project of a prayer, by Governor Livingston, father of the present Judge, intended to comprehend and conciliate college students of every Christian denomination, by a form composed wholly of texts and phrases of Scripture'; 1 and Benjamin Franklin wrote his own more generalized version of the Lord's Prayer, with detailed explanation of the reasons for each change. 2 Nor is the problem of prayer in New York public schools novel. In a series of rulings beginning in 1837 and continuing until at least 1909, the Superintendent of Common Schools of the State of New York held that a 'teacher might open his school with prayer, provided he did not encroach upon the hours allotted to instruction, and provided that the attendance of the scholars was not exacted as a matter of school discipline. 3 The rational of the policy is most clearly stated by Superintendent Spencer, in a decision rendered May 13, 1839, 4 as follows:

'Both parties have rights; the one to bring up their children in the practice of publicly thanking their Creator for his protection, and invoking His blessing; the other of declining in behalf of their children, the religious services of any person in whose creed they may not concur, or for other reasons satisfactory to themselves. These rights are reciprocal, and should be protected equally; and neither should interfere with the other. Those who desire that their children should engage in public prayer have no right to compel other children to unite in the exercise, against the wishes of their parents. Nor have those who object to this time, place or manner of praying, or to the person who conducts the exercises, a right to deprive the other class of the opportunity of habituating their children to what they conceive an imperious duty. Neither the common school system, nor any other social system, can be maintained, unless the conscientious views of all are equally respected. The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools. In the present case, the Superintendent thinks the trustees had lawful right to permit the teacher to commence the business of the day by public prayer, with the children of such parents as desired it; and they were also right in directing that such exercise should not take place during school hours, nor form a part of school discipline.

* * *

* * *

'And the teacher should allow the children of all parents who do not desire them to engage in prayer to withdraw from the room, or to absent themselves from it. But if they come into the room before the usual school hours, and choose to remain there during prayer, they must preserve the order and decorum befitting such an occasion.'

In 1951 this policy was altered when the Board of Regents adopted a statement of belief recommending the prayer quoted above with the suggestion that 'at the commencement of each school day the act of allegiance to the Flag might well be joined with this act of reverence to God.' 5 Respondent School Board having followed the Regents' recommendation and directed recital of the prayer, the question presented to this court is whether as a matter of power, rather than as a question of policy, it may legally do so? For the reasons hereafter set forth at length, it is concluded that the 'establishment' clause of the Constitution does not prohibit the noncompulsory saying of the Regents' Prayer in the public schools, but that the 'free exercise' clause requires that respondent Board take affirmative steps to protect the rights of those who, for whatever reason, choose not to participate.

The case arises as an Article 78 proceeding, seeking an order in the nature of mandamus directing the respondent Board of Education of Union Free School District Number Nine, Town of North Hempstead to discontinue use of the prayer. The five petitioners are taxpayers within the district and parents of children in schools of the district. Permission to intervene was asked by sixteen taxpayer-parents who oppose the petition, and intervention was allowed pursuant to Civil Practice Act, § 1298, but limited in the Court's discretion to the merits of the constitutional questions under applicable provisions of the United States Constitution and the Constitution of the State of New York. The State Board of Regents did not seek to intervene but asked and without objection was granted leave to file a brief amicus curiae. The action of the Board which is questioned is the adoption on July 8, 1958 of a resolution 'that the regents prayer be said daily in our schools' and the direction, at the same meeting, by the Board 'to the District Principal that this be instituted as a daily procedure to follow the Salute to the flag'. The respondent Board of Education answered and moved to dismiss on a number of procedural grounds.

The Procedural Questions

First, it is claimed that since the matter 'can be adequately reviewed by an appeal to a court or to some other body or officer', to wit--the Commissioner of Education, pursuant to Education Law, § 310, C.P.A. § 1285(4) precludes consideration of the instant petition. That section, however, is not controlling in a proceeding in the nature of mandamus 'to compel performance of a duty specifically enjoined by law', 6 nor even in what would normally be a discretionary matter if a constitutional issue is involved. 7 It is, therefore, unnecessary to rule on petitioners' further contention that appeal to the Commissioner is not 'adequate.' 8

The Board next points to the fact that its resolution was adopted July 8, 1958, more than four months before the commencement (January 22, 1959) of this proceeding, and says that the proceeding is, therefore, not timely brought. But since what is charged in the petition is a continuing failure to obey the requirements of the Federal and State constitutions, and the proceeding was commenced within four months after the demand for discontinuance, it is within the time allowed by C.P.A. § 1286. 9

Third, the Board argues that a question of constitutionality must be raised in a plenary action rather than a special proceeding. This contention is based on the well-established rule that in a proceeding to review an application addressed to the discretion of an administrative body, petitioner is held to have conceded, for the purpose of the application, the constitutionality of the statute or ordinance under which the body acts. 10 But the application here is one involving performance of a constitutional duty, and that question is properly raised in an Article 78 proceeding. 11

Fourth, the Board objects that petitioners, in effect, seeking an injunction, which relief is not available in this proceeding. Of course, as the language of Section 1284 ('duty specifically enjoined by law') and the name (mandamus) of the former procedure imply, Article 78 procedures encompass relief which might be ordered by a mandatory injunction. That fact alone will not put outside the scope of Article 78 proceedings an action, such as the present one, seeking to compel the Board to obey the command of specific constitutional provisions, and thus within the express language of § 1284(3). 12

Finally, it is claimed that the petition is defective and should be dismissed as a matter of law because it fails to allege (a) that the schools attended by petitioners' children are within the school district and under control of respondent Board, and (b) facts which establish that the Board failed to perform a duty enjoined by law. With respect to the allegation of control, petitioners sought at the hearing permission both to reply and to amend their petition and have filed a reply containing the allegation said to be missing. Since the petition does not in haec verba make the allegation, the Court in the exercise of the discretion with which it is clothed by C.P.A. § 1294, grants the request to amend in order to obviate any question on the point, 13 although the fact is one that will be judicially noticed 14 and, therefore, need not be pleaded or proved. 15 Paragraph 4 of the petition is deemed amended by inserting at the end thereof the words: 'All of the schools referred to in paragraph '2' of this petition are within Union Free School District Number Nine and under the...

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