May v. Cooperman

• Decision Date: 24 October 1983
• Docket Number: Civ. A. No. 83-89.
• Citation: 572 F. Supp. 1561
• Parties: Jeffrey MAY, individually; Jean Ross, as natural parent of Damon Ross, an infant, and Jean Ross, individually; Bonnie Schorske, as natural parent of Mark Tulloss, an infant, and Bonnie Schorske, individually; Brenda Butler, as natural parent of Cary Butler, an infant, and Brenda Butler, individually; Gary Drew individually, Plaintiffs, v. Dr. Saul COOPERMAN, Commissioner of the Department of Education; New Jersey Department of Education; Edison Township Board of Education; Old Bridge Township Board of Education, Defendants. and Alan J. Karcher as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, Defendants-Intervenors.
• Court: U.S. District Court — District of New Jersey

572 F. Supp. 1561

Jeffrey MAY, individually; Jean Ross, as natural parent of Damon Ross, an infant, and Jean Ross, individually; Bonnie Schorske, as natural parent of Mark Tulloss, an infant, and Bonnie Schorske, individually; Brenda Butler, as natural parent of Cary Butler, an infant, and Brenda Butler, individually; Gary Drew individually, Plaintiffs, v. Dr. Saul COOPERMAN, Commissioner of the Department of Education; New Jersey Department of Education; Edison Township Board of Education; Old Bridge Township Board of Education, Defendants and Alan J. Karcher as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, Defendants-Intervenors.

Civ. A. No. 83-89.

United States District Court, D. New Jersey.

October 24, 1983.

Pellettieri, Rabstein & Altman by Richard M. Altman, Anne P. McHugh, Trenton, N.J., for plaintiffs.

Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney by William W. Robertson, Ralph J. Marra, Jr., Robert P. Zoller, Newark, N.J., for Alan J. Karcher and Carmen A. Orechio.

Marinari & Farkas by Lawrence T. Marinari, Trenton, N.J., for New Jersey General Assembly and New Jersey Senate.

Irwin I. Kimmelman, Atty. Gen. of N.J. by Jaynee LaVecchia, Deputy Atty. Gen., Trenton, N.J., for Dr. Saul Cooperman, Com'r of Educ. and Dept. of Educ.

R. Joseph Ferenczi, Edison, N.J., for Edison Tp. Bd. of Educ.

DEBEVOISE, District Judge.

This is an action for declaratory and injunctive relief brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek to have declared unconstitutional a State statute, namely, New Jersey P.L. 1982, Ch. 205 which provides that:

1. Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day for quiet and private contemplation or introspection.

2. This act shall take effect immediately.

Plaintiffs are public school children and parents of such children who either are not religious and view the minute of silence as an enforced religious observance or else are religious and oppose required participation in this particular observance. One plaintiff, Jeffrey May, is a teacher in the Edison Township school who declined to conduct a minute of silence in his classroom on the ground that it is a religious observance and who was threatened with discipline for this failure.

Defendants are Saul Cooperman, Commissioner of New Jersey's Department of Education which is responsible for implementing the minute of silence bill, the Edison Township Board of Education and the Old Bridge Township Board of Education.

The statute became effective on December 16, 1982 when the New Jersey State Senate overrode the Governor's veto, the Assembly having overridden the veto on December 13. By reason of the approaching Christmas recess the full effect of the statute was not felt until January 1983, when the public schools reopened.

This action was filed on January 10, at which time I issued an order temporarily restraining implementation of the statute. Subsequently the parties and the New Jersey Assembly and New Jersey Senate, which intervened as defendants, agreed to an extension of the temporary restraint until the trial of the case, thus in effect converting the temporary restraining order into a preliminary injunction.

The original defendants did not take an active role in the defense of the case. This inactivity flowed, no doubt, from the fact that the State's Governor and Attorney General had concluded that the statute violated the United States Constitution and that they could not in good faith defend it. However, the intervening defendants vigorously contested the action both during pretrial discovery proceedings and at the trial itself.

The trial commenced on September 13, 1983. Both sides produced extraordinarily useful witnesses. Each witness was articulate and effectively testified as to a significant aspect of the case. The witnesses viewed the statute, its purpose and effect from very different perspectives. Each witness held strong views concerning the educational and/or religious implications of the statute. All of their views were essential for an understanding of the issues and contributed significantly to the resolution of these issues.

The Facts

In the early 1960's the United States Supreme Court held that school-sponsored prayer and Bible reading in the public schools are unconstitutional. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). These decisions required modification of the exercises which traditionally had been conducted in New Jersey's public schools at the start of each day. These exercises typically included reading from the Old Testament and recital of the Lord's Prayer.

There was very substantial opposition to the Supreme Court's decisions, and in many parts of the United States various measures were proposed to change the ruling or evade it. In New Jersey legislation was proposed from time to time with the rather obvious purpose of reintroducing opening prayer in some form in the public schools.

At first such proposed legislation specifically mentioned prayer. For example, A. 146 (1969), which authorized "a brief period of silent prayer or meditation", was vetoed by Governor Hughes who had doubts as to its constitutionality. In 1971 a similar bill (A. 597 (1970)) was vetoed by Governor Cahill on similar grounds.

In 1978 the legislature adopted A. 648 which mandated "a brief period of silent meditation" at the beginning of each day and explicitly disavowed any intent to create a religious exercise. Governor Byrne declined to approve the bill and it failed to become law. He based his decision in part on the bill's possible violation of the Establishment Clause or the Free Exercise Clause of the First Amendment and in part on the lack of any useful purpose of the bill.

In 1980 Assemblyman Zangari introduced A. 2197 which called for a one minute period of silence in each public school during each school day. On May 4, 1981 Governor Byrne returned this bill unsigned on the grounds that it was either unconstitutional or unnecessary.¹

The statute which is the subject of this case was introduced as Assembly Bill No. 1064 on March 8, 1982. Its principal sponsor was Assemblyman Zangari, who was joined by 54 other members of the Assembly. Assemblyman Zangari had previously introduced three other bills on related subjects: one calling for an amendment to the United States Constitution to permit prayer in public places, including public schools (A. 162 (1980)), another providing for a period of prayer or scripture reading in each school before the beginning of the school day (A. 2196 (1980)), and still another providing for a one minute period of silence after the beginning of each school day (A. 2197 (1980), referred to above).

The New Jersey legislature does not preserve an official record of its hearings and debates, and consequently this source of information concerning the purpose of legislation is not available.² However, several witnesses described some of the legislative committee meetings which they attended by reason of their interest in the Bill.

Joseph Chuman, leader of the Society for Ethical Culture for Bergen County testified in opposition to the Bill before Senator Feldman's Education Committee on June 21, 1982. The hearing on the Bill lasted 1½ to 2 hours. Three committee members, including Senator Feldman, were present. Two representatives of education organizations and a representative of the American Civil Liberties Union spoke against the Bill. Assemblyman Zangari spoke in favor. He argued that it would serve a useful psychological purpose. He pointed out that although he was a Catholic he went to Protestant schools and was encouraged to participate, which never did him any harm. When Chuman spoke to him afterwards Assemblyman Zangari asserted that he would be happy to see verbal prayer and Bible reading in the schools. Asked about the effect on atheists, he stated that they were so few in number their views could be discounted. Mr. Chuman could recall no discussion before the Committee of the educational purposes of the Bill.

Marianne Rhodes, Associate Director of Government Relations of the New Jersey School Board Association, attended a May 17, 1982 hearing of an Assembly Committee and a September 23, 1982 hearing of the Senate Education Committee. She made memoranda of the discussions concerning Bill A. 1064. At the Assembly Committee hearing Assemblyman Zangari stated that the Bill had been reduced to 54 words and that it was important that society get back to deeply embedded religious values. He quoted President Reagan as advocating adoption of a constitutional amendment allowing school prayer.

Ms. Rhodes recorded that at the September 23 Senate hearing Senator Ewing and Assemblyman Zangari spoke for the Bill. In response to Senator Feldman's question why the Bill was necessary since students could pray whenever they wished, Assemblyman Zangari stated that "They students publicly won't do it pray unless they are directed."

The Rev. Dudley E. Sarfaty is Associate General Secretary of the New Jersey Council of Churches, a group composed of representatives of 15 Protestant denominations. He attended the sessions of the Assembly at which the question of overriding the Governor's veto was debated. He made notes of these sessions. Assemblyman Michael F. Adubato urged that it would be a good thing if the State subsidized parochial education, and the Bill was a step in the right direction. Senator Dumont stated that the kind of ceremony required by the minute of silence B...