Excerpts from
Teaching with Documents: Using Primary Sources from the National Archives
National Archives and Records Administration and National Council for the Social Studies
Washington, D.C.

Abington v. Schempp: A Study in the Establishment Clause

A little more than 25 years ago, the Supreme Court heard a series of First Amendment cases related to school prayer and Bible reading. In a concurring opinion in one of these cases, Justice William J. Brennan declared that "the Court's historic duty to expound the meaning of the Constitution has encountered few issues more intricate or more demanding than that of the relationship between religion and the public schools." Nevertheless, a succession of cases affecting religion and public schools are appealed to the Court, heard by the justices, and decided year after year.

Our students need a historical framework of First Amendment freedom-of-religion cases in order to understand recent decisions made by the courts. Beginning with the first major case involving the establishment clause of the First Amendment brought before the Supreme Court in 1947, Everson v. Board of Education, the justices have used a broad construction of the clause. Justice Hugo Black's opinion in that case clearly describes this construction:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'

In the Everson case, the Court nevertheless upheld the State of New Jersey parochial school busing plan on the basis that the assistance was to the child, not to a religion. In 1948 and 1952, the Court heard two cases involving released time for religious instruction. In the first case, McCollum v. Board of Education, the Illinois program was declared unconstitutional because the instruction was given within the school building. On the other hand, in the second case, Zorach v. Clauson, the New York program was upheld as constitutional because the instruction was outside the state-owned school facility. Thus the Court established a test to determine the extent to which the public school may accommodate religious education during the school day, a distinction used by the Court later in the Schempp decision.

A cluster of Bible-reading and prayer cases was decided in 1962 and 1963. The New York Regents' prayer written for that state's public schools was ruled in violation of the First Amendment in Engle v. Vitale, June 1962. Then in the October 1962 term, the Court struck down a Pennsylvania law requiring the daily reading without comment of ten verses from the Bible followed by a recitation of the Lord's Prayer. The opinion for the second case, Abington Township, Pennsylvania v. Schempp, and its companion case in Maryland, Murray v. Curlett, was written by justice Tom C. Clark. The Court's conclusion, as enunciated by Justice Clark, was based on the facts that the exercises were required, the students recited the exercises in unison, the exercises were held in public buildings, and the exercises were supervised by state-paid teachers.

In none of these cases, however, did the Supreme Court rule voluntary prayer unconstitutional. Furthermore, the Court did not rule against teaching about religion in public schools. Concerning this, Justice Clark wrote, "it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization." A number of educational organizations, including NCSS, have developed guidelines for teaching about religions in the public school curriculum. For a copy of the NCSS position statement and guidelines, write to NCSS headquarters.

The issue of Bible reading and prayer in the public schools is reflected more immediately by a proposed constitutional amendment permitting organized prayer in the public schools, the recent court cases in New Jersey (Karcher v. May) and Alabama (Wallace v. Jafree), and the continuing confusion over the meaning of the establishment clause.

The document reproduced here is a portion of Justice Clark's opinion of the Court in the Schempp case. Located in the National Archives, the opinion is part of the Records of the U.S. Supreme Court, Record Group 267, Appellate Case Files, No. 142, O.T. 1962.

Additional religious freedom documents along with teaching suggestions may be found in a National Archives documentary teaching package entitled The Constitution: Evolution of a Government. For more information, contact the Education Branch, National Archives and Records Administration, Washington, DC 20408; or call 202-523-3347.

Teaching Suggestions

1. Prepare a worksheet listing the following items for analyzing the document: type of document, author of the opinion, to whom the document was written, audience for whom it was written, what cases were decided, justification for hearing both cases as one, decisions rendered, constitutional basis for considering the case, summary statements of reasons for decision, and three unfamiliar legal terms used in the document and their definitions. Photocopy a worksheet and a copy of all three pages of the document for each student and ask students to complete the worksheet while carefully reading the document.

2. Direct students to find out the story of the Schempp case. Give the students a chance to tell the story aloud in class with as many students as possible adding details. Ask the students to summarize the story along with the finding of the Court in the case and then conduct an opinion poll among other students and teachers in the school and youths and adults in their neighborhoods and communities to discover the current attitudes toward prayer in the public schools. Compare results of the polls in class.

3. Working with your students, compile a list on the chalkboard or the overhead projector of arguments that could have been used on both sides of the Schempp case. Divide the class into groups of five or six students. Ask students to discuss the arguments thoroughly and then take a position, pro or con. Encourage each group to reach a consensus rather than take a vote. A recorder from each group should report to the class the group's position and the reasons for taking that position.

4. Use the document and the note to the teacher to help students make a list of establishment clause court cases from Everson to the most recent. Prepare a data-retrieval chart that includes the following items of information to be gathered for each of the cases: date, original jurisdiction of case, principal figures in the dispute, circumstances surrounding the issue, decision reached by the Court, basis of the decision, and changes in legal interpretation of the issue. After assembling the information, the students could chart a time line in the classroom tracing the history of the interpretation of the establishment clause and indicating the changes in interpretation during the past 40 years.

5. Beginning with the statements made by Justice Clark in the document, conduct a class discussion on the Court's position on teaching about religion in the public schools. Instruct students to gather information from a variety of sources on what is the legal, ethical, appropriate, and responsible place of religion during the school day and on the school campus.

6. For further study, you might direct students to research additional religious freedom issues related to education raised in court cases, such as released time, equal access to public facilities, teaching of evolution versus creationism, tuition tax credits to parents of students in private sectarian schools, and public financial grants to religious bodies.


Nos. 142 and 119 — October Term. 1962

School District of Abington Township.
Pennsylvania et al., Appellants
142 v.
Edward Lewis Schempp et al.
On Appeal From the United States
District Court for the Eastern
District of Pennsylvania
William J. Murray III, etc., et al.,
119                            v.
John N. Curlett, President, et al.,
Individually, and Constituting the
Board of School Commissioners of
Baltimore City.
On Writ of Certiorari to the Court
of Appeals of Maryland

[June 17, 1963.]

MR. JUSTICE CLARK delivered the opinion of the Court.

Once again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . ." These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the states through the Fourteenth Amendment.

142 & 119


with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners.9 Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. See Engel v. Vitale, supra, at 430. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, "it is proper to take alarm at the first experiment on our liberties." Memorial and Remonstrance Against Religious Assessments, quoted in Everson, supra, at 65.

It is insisted that unless these religious exercises are permitted a "religion of secularism" is established in the schools. We agree of course that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or slowing hostility to religion, thus "preferring those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 314. We do not agree, however. that this decision in any sense has that effect. In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority's right to free exercise of religion.10 While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. Such a contention was effectively answered by Mr. Justice Jackson for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943):

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

The place of religion in our society is an exalted one achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in No. 142. In No. 119, the judgment is reversed and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

9It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain. But the requirements for standing to challenge state action under the Establishment Clause, unlike those relating to the Free Exercise Clause, do not include proof that particular religious freedoms are infringed. McGowan v. Maryland, supra, at 429-430. The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain. See Engle v. Vitale, supra. Cf. McCollum v. Board of Education, supra; Everson v. Board of Education, supra. Compare Doremus v. Board of Education, 342 U.S. 429 (1952), which involved the same substantive issues presented here. The appeal was there dismissed upon the graduation of the school child involved and because of the appellants' failure to establish standing as taxpayers.

10We are not of course presented with and therefore do not pass upon a situation such as military service, where the Government regulates the temporal and geographic environment of individuals to a point that, unless it permits voluntary religious services to be conducted with the use of government facilities, military personnel would be unable to engage in the practice of their faiths.

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