Schempp v. School District of Abington Township, Pa.

• Decision Date: 22 September 1959
• Docket Number: Civ. A. No. 24119.
• Citation: 177 F. Supp. 398
• Parties: Edward 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, James F. Koehler, O. H. English, Eugene Stull, M. Edward Northam.
• Court: U.S. District Court — Eastern District of Pennsylvania

177 F. Supp. 398

Edward 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, James F. Koehler, O. H. English, Eugene Stull, M. Edward Northam.

Civ. A. No. 24119.

United States District Court E. D. Pennsylvania.

September 16, 1959.

As Amended September 22, 1959.

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

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

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

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

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

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

BIGGS, Circuit Judge.

The suit at bar is brought by Edward Lewis Schempp and Sidney Gerber Schempp, individually and as parents and natural guardians of Ellory Frank Schempp, Roger Wade Schempp and Donna Kay Schempp, against School District of Abington Township, Montgomery County, Pennsylvania, O. H. English, Superintendent of Abington Township Schools, Eugene Stull, Principal of the Abington Senior High School, and M. Edward Northam, Principal of the Huntingdon Junior High School, located in Abington Township. The suit is brought under 28 U.S.C. §§ 1343 and 2281, and was heard by a three-judge court pursuant to 28 U.S.C. § 2284. The parent plaintiffs complain on behalf of themselves as parents and as the natural guardians of Ellory, Roger and Donna, their minor children. At the time of the filing of the action, the older son, Ellory, was a student at the Abington Senior High School but graduated from that school prior to the trial, which was held during the summer recess. All the parties are in accord that the application for an injunction is moot as to him.¹

The complaint alleges that the Pennsylvania statute which provides for the reading of ten verses of the "Holy Bible"² by teachers or students³ is unconstitutional as an establishment of religion and a prohibiting of the free exercise thereof. The complaint makes a similar assertion in respect to the reading of the ten verses in conjunction with the practice of recitation⁴ in unison by students and teachers of the Lord's Prayer.⁵ The plaintiffs also assert, though not in the complaint, that the recitation of the Lord's Prayer in and of itself in the public schools of Abington Township is unconstitutional for similar reasons.⁶ The prayers at the end of each count of the complaint are substantially the same and seek declarations of unconstitutionality and the permanent enjoining of the practices complained of.⁷

I.

The parent plaintiffs are of the Unitarian faith and are members of a Unitarian Church in Germantown, Pennsylvania, which they attend regularly together with their three children, Ellory, Roger and Donna. The children also attend Sunday School regularly. Ellory was eighteen years of age at the time of the trial and had attended the Abington Senior High School from which he graduated in June of 1958. Roger was fifteen at the time of the trial and was an eighth grade student in the Huntingdon Junior High School in Abington Township during the academic year previous to the trial. Donna was twelve years old at the time of the trial and was also a student at the Huntingdon Junior High School and in the academic year preceding the trial had been in the seventh grade. All three children testified at the trial and their evidence proves that it was the practice of the various schools of the Township which they attended to observe the opening period of each day with a brief ceremony consisting of the reading of ten verses of the "Holy Bible", followed by a standing recitation in unison of that portion of the New Testament known as the "Lord's Prayer",⁸ and that generally the ceremony was followed by the familiar Pledge of Allegiance to the Flag.

The testimony of the three children described a number of variations in the manner employed in the execution of this ceremony from school to school. The required ten verses were read either by the "home room" teacher or by students in the "home room", who either volunteered or were selected by rotation. An exception to these practices was recounted by Ellory Schempp who said that after the Senior High School had moved to a new building equipped with a public address system, the Bible was read over the loud speaker in each classroom following which a voice on the loud speaker directed the children to rise and repeat the Lord's Prayer.⁹ Donna Schempp testified that during the reading of the Bible a standard of physical deportment and attention of higher caliber than usual was required of the students. Edward L. Schempp, father of the minor plaintiffs, stated that the Bible reading, in the manner in which it was conducted, was "given a degree of authority * * * beyond normal school authority."

The three Schempp children and their father testified also as to items of religious doctrine purveyed by a literal reading of the Bible, particularly the King James Version,¹⁰ which were contrary to the religious beliefs which they held and to their familial teaching.¹¹

Roger and Donna testified that they had never protested to their teachers or other persons of authority in the school system concerning the practices of which they now complain. In fact, on occasion, Donna herself had volunteered to read the Bible. The father, Edward Schempp, testified also that no complaint was lodged by him with the school authorities. Ellory Schempp, however, did complain of the practices, and demonstrated his objection first in November of 1956 by reading to himself a copy of the Koran while the Bible was being read, and refusing to stand during the recitation of the Lord's Prayer. He testified that his home room teacher stated to him that he should stand during the recitation of the Lord's Prayer, and that he then asked to be excused from "morning devotions". Afterwards he was sent to discuss the matter with the Vice-Principal and the School Guidance Counsellor. As a result, for the remainder of the year, Ellory spent the period given over for "morning devotions" each day in the Guidance Counsellor's office. At the beginning of the next academic year, which was Ellory's last in the Abington Township school system, he asked his then home room teacher to be excused from attendance at the ceremony. After discussing the matter with the Assistant Principal, that official told Ellory that he should remain in the home room and attend the morning Bible reading and prayer recitation period as did the other students.¹² This he did for the remainder of the year. The defendant Superintendent and the School Principals testified that no complaint, other than that of Ellory Schempp, had ever been received from any source. This evidence was uncontradicted.

We have the testimony of expert witnesses. Dr. Solomon Grayzel¹³ testified that there were marked differences between the Jewish Holy Scriptures and the Christian Holy Bible, the most obvious of which was the absence of the New Testament in the Jewish Holy Scriptures. Dr. Grayzel testified that portions of the New Testament were offensive to Jewish tradition and that, from the standpoint of Jewish faith, the concept of Jesus Christ as the Son of God was "practically blasphemous". He cited instances in the New Testament which, assertedly, were not only sectarian in nature but tended to bring the Jews into ridicule or scorn.¹⁴ Dr. Grayzel gave as his expert opinion that such material from the New Testament could be explained to Jewish children in such a way as to do no harm to them. But if portions of the New Testament were read without explanation, they could be, and in his specific experience with children Dr. Grayzel observed, had been, psychologically harmful to the child and had caused a divisive force within the social media of the school.

Dr. Grayzel also testified that there was significant difference in attitude with regard to the respective Books of the Jewish and Christian Religions in that Judaism attaches no special significance to the reading of the Bible per se and that the Jewish Holy Scriptures are source materials to be studied. But Dr. Grayzel did state that many portions of the New, as well as of the Old, Testament contained passages of great literary and moral value.

Dr. Luther A. Weigle, an expert witness for the defense,¹⁵ testified in some detail as to the reasons for and the methods employed in developing the King James and the Revised Standard Versions of the Bible. On direct examination, Dr. Weigle stated that the Bible was non-sectarian.¹⁶ He later stated that the phrase "non-sectarian" meant to him non-sectarian within the Christian faiths. Dr. Weigle stated that his definition of the Holy Bible would include the Jewish Holy Scriptures, but also stated that the "Holy Bible" would not be complete without the New Testament. He stated that the New Testament "conveyed the message of Christians." In his opinion, reading of the Holy Scriptures to the exclusion of the New Testament would be a sectarian practice. Dr. Weigle stated that the Bible was of great moral, historical and literary value. This is conceded by all the parties and is also the view of the court.

We can perceive no substantial contradictions in the testimony of any of the witnesses and we find the operative facts in the instant case to be as stated by them.

II.

The plaintiffs contend that the practices, as described, of the Abington Township schools constituted an establishment of religion and a prohibiting of the free exercise thereof and are therefore a violation of rights guaranteed by the First Amendment to the Constitution of the...