Court History
NATIONAL LAWYERS GUILD
154 Nassau Street
New York 36, N. Y.
CIVIL LIBERTIES DOCKET
Vol. IV, No. 3
May, 1959
110.8. Plaintiffs. v. Herricks School Board. (Mineola, Long Island Superior Court.) Suit by residents of defendent.-school district to direct Defendent-Board to discontinue prayer said each morning in public schools, (as recommended in 1951 by NY Board of Regents, with its use optional):
"Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessing upon us, our parents, our teachers and our country."
Issue: whether prayer is sectarian, favors belief in religion over non-belief, in violation of First Amendment. Pending.
Butler, Jablow and Geller, Esqs., 400 Madison Ave., NYC.
Amicus appearance by NY Civil Liberties Union, 170 Fifth Ave., NYC.
Vol. V, No. 1
November, 1959
110.8. Engle v. Vitale (formerly listed as v. Herricks School Board) (Nassau County Superior Court) For facts, see IV DOCKET 69.
Aug. 24: Superior Court Justice held no violation of First Amendment rights in Defendent School Board's. directing daily recitation of prayer suggested by NY Board of Regents. Case remanded to Defendent Board to amend resolution to state explicitly that students are free to participate or not, parents to be advised of students' choice and asked to indicate whether children shall or shall not participate in prayer, schools forbidden to comment upon student participation or non-participation.
Vol. VI, No. 1
November, 1960
110.8. Engle v. Vitale. (N.Y. Superior Court, Appelate Division, 2d Dept.) (18 Misc. 2d 659, 191 N.Y.S. 2d 453.)
Suit by residents of Defendent-school district to direct Defendent Board to discontinue daily prayer in public schools, (as recommended in 1951 by NY Board of Regents, with its use optional): "Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessing upon us, our parents, our teachers and our country".
Issue: whether prayer is sectarian, favors belief in religion over non-belief, in violation of First Amendment. Aug. 24, 1959: court held no violation of First Amendment, remanded to Defendent Board to amend resolution to state explicitly that students are free to participate or not, parents to indicate whether children shall or shall not participate in prayer, schools forbidden to comment upon student participation or non-participation. Oct. 17, 1960: Appelate Division unanimously affirmed.
Butler, Jablow and Geller, Esqs., 400 Madison Ave., NYC.
Amicus appearance by NY Civil Liberties Union, 156 Fifth Ave., NYC.
Case note:
6 N.Y. Law Forum 321-327.
Vol. VII, No. 1
November, 1961
110.8. Engle v. Vitale. (N.Y. Ct. of App.) Facts: VI DOCKET 6. Jy. 7, 1961: N.Y. Court of Appeals (5-2) affirmed, Desmond, C.J., held:
1) no question of denial of free exercise of religion since no pupil required to be present during saying of Regents' prayer;
2) saying prayer daily in public schools does not constitute "establishment of religion" in violation of First Amendment, citing Douglas, J., in Zorach v. Clauson, 343 U.S. 306. Dye, J., diss. (with Fuld, J.): wall between church and state must remain "high and impregnable"; prayer violates this principle, citing Torcaso, 264.1, McCollum, 333 U.S. 203; "However salutary the underlying purpose of the requirement may be, it nonetheless gives to the State a direct supervision and influence that overstep the line marking the division between Church and State and cannot help but lead to a gradual erosion of the mighty bulwark erected by the First Amendment". Appeal to United States Supreme Court pending.
Vol. VII, No. 2
February, 1962
110.8. Engel v. Vitale. (United States Supreme Court, #468.) (176 N.E. 2d 579.) Facts: VI DOCKET 6, VII DOCKET 6. Dec. 4, 1961: United States Supreme Court granted certiorari.
Vol. VII, No. 4
July, 1962
110. Separation of Church and State
111. In Education (formerly 110)
111.8. Engel v. Vitale. (United States Supreme Court, #468.) (18 Misc. 2d 659, 191 N.Y.S. 2d 453; 11 A.D. 2d 340, 206 N.Y.S. 2d 183; 10 N.Y. 2d 174, 218 N.Y.S. 2d 659, 176 N.E. 2d 579.) Facts: VI DOCKET 6, VII DOCKET 6.
June 25, 1962: United States Supreme Court (6-1) reversed, Black, J.: "N.Y.'s program of daily invocation of God's blessings as prescribed in the Regents' prayer is a religious activity ... Neither the fact that the prayer may be denominationally neutral, nor the fact that its observance on the part of students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment ... these two clauses ... forbid two quite different kinds of governmental encroachment upon religious freedom ..." Stewart, J., diss.
The complaining parents' view.
2. Petitioner Steven I. Engel is the father of Michael Engel, a child of seven years of age who resides with the said petitioner, and pursuant to the provisions of the Education Law attends regularly at the Searingtown School in Albertson, County of Nassau. Petitioner Daniel Lichtenstein is the father of Naomi Lichtenstein, David Lichtenstein, and Judy Lichtenstein, who are ten, twelve and fifteen years of age, respectively, and who reside with said petitioner, and pursuant to the provisions of the Education Law attend regularly at Searingtown School, Albertson, Herricks Junior High School, New Hyde Park, and Herricks [*12] Senior High School, New Hyde Park, all in the County of Nassau, respectively. Petitioner Monroe Lerner is the father of Cynthia Lerner, who is seven years of age, and who resides with the said petitioner, and pursuant to the provisions of the Education Law attends regularly at Searingtown School, Albertson, County of Nassau. Petitioner Lenore Lyons is the mother of Jeanne Lyons, David Lyons and Wendy Lyons, who are nine, eleven and thirteen years of age, respectively, and who reside with the said petitioner, and pursuant to the provisions of the Education Law attend regularly at Center Street School, Williston Park, Center Street School, Williston Park, and Herricks Junior High School, New Hyde Park, all in the County of Nassau, respectively. Petitioner Lawrence Roth is the father of Joseph Roth and Daniel Roth, who are ten and thirteen years of age, respectively, and who reside with the said petitioner, and pursuant to the provisions of the Education Law attend regularly at Searingtown School, Albertson, and Herricks Junior High School, New Hyde Park, both in the County of Nassau, respectively.
3. Petitioner Steven I. Engel and his said child are members of the Jewish faith. Petitioner Daniel Lichtenstein and his said children are members of the Jewish faith. Petitioner Monroe Lerner and his said child are members of the Society for Ethical Culture. Petitioner Lenore Lyons and her said children are members of the Unitarian Church. Petitioner Lawrence Roth and his said children are nonbelievers.
4. Respondents constitute the Board of Education of Union Free School District Number Nine, [*13] New Hyde Park, New York, and are charged with the performance of any and all duties imposed under the Education Law and by the regulations of the Commissioner of Education of the State of New York authorized by the Education Law.
5. Petitioners are required by Section 3212 of the Education Law to cause their said minor children to attend regularly upon instruction during the entire term that the appropriate schools or classes are in session, and failure or refusal on the part of petitioners to cause their said minor children so to attend renders petitioners subject to punishment pursuant to the provisions of Section 3212 of the Education Law.
6. On information and belief, on the 8th day of July, 1958, at a special meeting of the Board of Education of the said Union Free School District Number Nine, at which respondents were present, respondents, by majority vote, passed a resolution moved by respondent Mary Harte and seconded by respondent Richard Saunders, that the so called "Regents'" prayer be said daily in the schools of the said School District and that the Board of Education of the said School District direct Lester Peck, as District Principal of the said School District that the said prayer be instituted as a daily procedure following the Salute to the Flag.
7. The so-called "Regents'" prayer, to which the said resolution referred, is a prayer contained in a Statement of Belief adopted on November 30, 1951 at a meeting of the State Board of Regents of the State of New York, a copy of which Statement of Belief is attached to this petition [*14] and made a part hereof as Exhibit "A". The said prayer reads in full as follows:
"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country."
8. On information and belief, respondents were not required by the said Statement of Belief of the State Board of Regents or by any subsequent order or act of the State Board of Regents or of the Commissioner of Education of the State of New York to institute the said prayer as a daily procedure in the schools of the said Union Free School District Number Nine, but their doing so was entirely voluntary on their part.
9. On information and belief, respondents have directed the said Lester Peck that the said prayer be instituted as a daily procedure following the Salute to the Flag in all of the schools of the said School District, and the said prayer is presently being said daily in all of the said schools as directed.
10. The manner in which the said prayer is said is as follows: Each morning at the commencement of each class in each school in the said Union Free School District Number Nine following the Salute to the Flag, the said prayer is said aloud. The prayer is led by the teacher or by a student selected by the teacher, with the other students joining therein. The prayer is said with hands clasped together in front of the body, fingers extended and pointed upwards in the manner of a supplicant. During the saying of the prayer, no student is permitted to leave the classroom.
11. The saying of the said prayer and the manner and setting in which it is said entails the use of the public school system of the said Union Free School District Number Nine and the time and efforts of the teachers and the staff of the schools in the said School District.
12. Both the saying of the said prayer and the manner and setting in which it is said constitute the teaching of religion and religious practices in a form, manner and setting which is contrary to the religion and religious practices of those of the petitioners who are believers and their said children, and is contrary to the religion and religious practices of a substantial number of other parents of children in the said Union Free School District Number Nine and their children, and, therefore, the saying of the said prayer and the manner and setting in which it is said is offensive to the said parents and children.
13. Both the saying of the said prayer and the manner and setting in which it is said constitute the teaching of religion and religious practices contrary to the beliefs concerning such matters held by the petitioner and his children who are nonbelievers and by other parents of children in the public schools of the said Union Free School District Number Nine and their said children who are nonbelievers, and the saying of the said prayer and the manner and setting in which it is said is, therefore, offensive to the said parents and children.
14. Both the saying of the said prayer and the manner and setting in which it is said have necessarily resulted in the exercise of coercion upon the children of petitioners and upon other students in the public schools of the said Union [*16] Free School District Number Nine, to engage, against their will, in the saying of a religious prayer and/or to do so in a manner and in a setting which is contrary to the beliefs of the said children and their parents, and is, therefore, offensive to them.
15. Both the saying of the said prayer and the manner and setting in which it is said are sectarian and denominational practices, and favor one or more religions and religious practices over others.
16. Both the saying of the said prayer and the manner and setting in which it is said favor the belief in religion over nonbelief therein.
17. Both the saying of the said prayer and the manner and setting in which it is said have necessarily resulted in divisiveness among the students in the public schools of the said Union Free School District Number Nine and among their parents, because of the differences in the beliefs of the said students and their parents concerning religion and religious practices.
48 18. The saying of the said prayer and the manner and setting in which it is said violate the prohibition against laws respecting an establishment of religion contained in the First Amendment of the Constitution of the United States and made applicable to the State of New York by the Fourteenth Amendment of the said Constitution.
19. Both the saying of the said prayer and the manner and setting in which it is said also violate the prohibition against laws prohibiting the free exercise of religion contained in the First and Fourteenth Amendments of the Constitution of the United States.
The School Board's Response with comments by H. David Marshak
WILLIAM J. VITALE, JR., being duly sworn, deposes and says:
1. I am the duly elected President of the Board of Education of Union Free School District Number Nine, sometimes called the Herricks School District, situated in the Town of North Hempstead, County of Nassau, State of New York and I am one of the respondents in this proceeding.
6. Upon the adoption of the said resolution of July 8, 1958, regarding the prayer, the Board of Education directed that said prayer shall be said daily in all schools of the District and that no child was to be required or encouraged to join in said prayer against his or her wishes.
HDM: This was not true. I was told I had to say the prayer. I did not want to. I am not an atheist; but I did not and do not like the language of the prayer.
7. The School District consists of a Senior High School, a Junior High School and five elementary schools in which approximately 4294 children are pupils and in each of those schools, since their opening in the early part of September 1958, the procedure adopted by the Board of Education as aforesaid has been in force.
8. As of the date of this affidavit, no parent or child has complained to the Board of Education that the above procedure has not been scrupulously carried out and there has been brought to our attention only one instance in which any request has been received asking that a child be excused from joining in the prayer, which request has [*27] been respected; nor has any child directly requested to be excused from joining in said prayer.
HDM: The last sentence implies that no child directly requested to be excused from joining in said prayer. This was not true. No child directly asked the Board of Education to be excused from the prayer. It was absurd for Vitale to infer from this that all the children were happy to say it.
9. On the contrary the principals and teachers in the School District have been directed and are following the directions that under no circumstances shall a pupil in any way be made or encouraged to join in the prayer and no teacher has instructed the pupils how they are to hold their hands or otherwise conduct themselves during the saying of the prayer.
HDM: This was not true.
10. Neither the Board of Education nor the school administration has ever received any indication from either a parent or a child within the School District that any child has sought permission to leave any class room during the saying of said prayer.
HDM: These are weasel words. Vitale and Peck should have realized that there were children who didn't want to say this prayer. It seemed to me then to be the kind of thing I read about them doing in Nazi Germany.
11. As a member of the Board of Education of Herricks School District for some years and as a father I am fully conscious of the need for instilling in the youth of today some recognition of the moral and spiritual values which are part of the heritage of this country and of this State. The brief moment of prayer, by those who join in it at the opening of school each day, as prescribed in our School District, cannot help but remind those children, in the words of our State Constitution, that by acknowledging their dependence on God, they may thus "secure" the blessings of Freedom granted by Almighty God.
WHEREFORE, deponent prays that petitioners' application be denied.
WILLIAM J. VITALE, JR.
(Sworn to February 18, 1959.)
With help from Herricks alumni, Bruce Dierenfield has written a book which discusses this.
The Battle over School Prayer: How Engel V. Vitale Changed America (Landmark Law Cases and American Society)
The heart of the book comes in chapters four through seven. The fourth chapter examines the politics behind the decision of the school board to adopt the twenty-two word nondenominational prayer. Although the prayer was proposed by a group of ministers, priests, and rabbis and adopted by the New York Board of Regents in 1951, it was not until 1958, when Roman Catholics took control of the Herricks School Board, that the district teachers were directed to recite the prayer. Chapter Five looks at the decision of five families to challenge the constitutionality of the prayer and their planning for the case with legal counsel. Diernfield gives appropriate credit to Lawrence Roth, whom he calls the “now-forgotten force” behind the ouster of government-sponsored school prayer, and William Butler, the thirty-four year old lawyer for the New York Civil Liberties Union (NYCLU), who was chosen to represent the families in large part because of his Catholicism, the NYCLU having decided that it did not want a Jewish lawyer to argue the case.
The story of the trial and subsequent appeals appears in Chapter Six. This chapter delves briefly into the legal strategies of the plaintiffs and defendants and describes well the atmosphere in the courtroom and arguments advanced in the trial. Most every student of constitutional law is familiar with the U.S. Supreme Court’s decision in this case. But the trial proceedings and the trial judge’s painstaking decision – which stated that accommodation was permissible, but compulsion was not – are often overlooked in the literature. In this chapter, the trial court gets equal billing with the Supreme Court.
The seventh chapter explores the divided reaction from the participants, school administrators, the press, political and religious leaders, and legal scholars. Dierenfield does a commendable job of using newspaper articles to give the reader a feel for the often visceral reactions to the case among certain conservative groups. He also details how the plaintiff families suffered – accusations, crank calls, hate mail, and death threats, and so forth. Dierenfield notes that one plaintiff family received eight thousand angry telephone calls in a single week. (If accurate, this is one phone call every seventy-five seconds for a full week!) [*692]
Before Engel v. Vitale: On June 25, 1962, the SupremeCourt gave its first ruling on school prayers. The title of the case was Engel v. Vitale. In Engel, the Supreme Court ruled that school prayers are unconstitutional, or more specifically, it is unconstitutional for public school officials to compose a prayer and recommend that it be said by students (“Prayers, Bibles”1279).The ruling on Engel literally divided the nation as both the American public and the political arena introduced provocative arguments supporting or denouncing the Court’s decision. But more importantly, Engel v. Vitale opened the eyes of America not only to the issues of school prayers and religion in public schools,but also to the broader issues of the freedom of religion and theseparation of church and state.
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” Engel v. Vitale: The above prayer was said throughout the New York schools at the beginning of each school day. It was approved by the New York State Board of Regents after several state officials and parents felt that some kind of moral message should be encouraged in school. Feeling that the prayer was simple and secular, the regents felt that the prayer should have been routine as saying the Pledge of Allegiance (Haas 7-8). Furthermore, any student who felt the prayer was offensive did not have to participate. They could either join in the prayer without acknowledging the message, not say the prayer at all, or wait outside the classroom until the prayer was over. According to the Regents, the prayer was completely harmless. However, the practice faced immediate opposition. Five parents, Lenore Lyons, Monroe Lerner, Stephen Engel, Daniel Lichtenstein, and Lawrence Roth filed a lawsuit against the Boardof Education of New Hyde Park, which was represented by William Vitale, Jr. The parents, who came from various religious backgrounds—Jewish, Unitarian, and atheist, believed that any individual should not have to be subjected to another’s religion or be singled out as having a minority belief.The parents lost twice to the school board in both a county court and then later to the New York Court of Appeals.Finally, the parents took their case to the U.S. Supreme Court.The parents gave their penultimate arguments to the Supreme Court in April of 1962. They were as follows:1. No one disagreed that the prayer was a religious activity, not even the school board. The school, being an government institution was therefore supporting a religious activity and therefore violated the of separation of church and state and the freedom of religiondoctrines. 2. Even though the students did not have to participate in the prayer, the peer pressure and expectations from teachers made it difficult for a student to feel comfortable for not participating.
The Court said that the government was never given power to support a religious activity and cited incidents in history which acknowledged the flaws of doing so. The majority opinion also stated that the prayer indeed was a violation of a citizen’s rights and that tax money was used in supporting the activity (Harrisonand Steve Gilbert 37 - 46). Justice William’s concurring opinion further acknowledged that tax money was used to pay for the prayer. And in a shocking statement, Justice William felt that the words “In God We Trust” and using the Bible for administrating oaths were just a few things which might be unconstitutional. Justice Stewart’s dissenting report primarily argued that religion was a part of America’s tradition. He quoted the Supreme Court’s majority opinion on Zorarch v. Clauson: “We are a religious people whose institutions presuppose a Supreme Being.” And instead of declaring the activities Justice William felt were unconstitutional, Stewart wrote that the said activities were proof that religion is a part of America’s heritage. According to Justice Stewart, the New York Regent’s prayer was as harmless as the prayer said at the being of each Supreme Court session, which contains the phrase “God save the United States and this honorable Court” (Haas 50-51).
Roth learned early on how to rein in his emotions. He grew up on Long Island (N.Y.) in the '50s, the son of Lawrence Roth, a plastics-plant foreman with a passion for left-wing causes. In 1959 Roth's childhood was suddenly transformed when his father made him part of a test case in an ACLU suit to abolish prayer in public schools. Local ministers branded Joe the Devil; enemies burned a 25-foot cross on his lawn and planted a bomb in his basement; FBI agents shadowed him. " What saved me was that I played three sports, and the kids couldn't come to terms with a lefty-commie bad kid who was playing ball with everybody," says Roth. The lawsuit ended with a 1962 Supreme Court decision declaring public-school prayer unconstitutional. "Joe had to stand up at a very tender age," a friend says. "It made him dogged... very tough."
The 1960s brought two very important challenges to school prayer. The first of these cases was Engel v. Vitale. In New York, the State Board of Regents composed a generic undenominational prayer for the public schools of the state: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” For some supporters the prayer was confirmation of religious foundations in a fast-changing world. For others it was acknowledgment that America, as opposed to Communist Russia, was certain of its heritage and belief system. For others it was a reminder to the state’s diverse population of what the dominant culture’s faith was all about. For some teachers it was simply a way of getting the class to quiet down before beginning the daily class work.
But there were others who were very uncomfortable with the Regents prayer. For many children there was a daily decision to be made. Should they go along with the prayer and compromise their convictions by going along with the prayer, or risk being ostracized or being made fun of by not complying? The Roth brothers, who were Jewish, were told by their father to leave the classroom during the prayer; for this they earned taunts, fights and ridicule from other students. Lawrence Roth joined suit with five other parents, including Steven Engel and sued the President of the school board, William Vitale. The Court was clear in its response in Engel v. Vitale: no school prayers written by school officials can be considered constitutional under the establishment clause of the Constitution. Unfortunately, in victory, Lawrence Roth was the target of harassing phone calls, threats, even a cross being burned on his lawn. Later, one of the two brothers, Joseph Roth remembered fellow students threatening him and the F.B.I. putting him under surveillance.
“Mr. Engel and his fellow plaintiffs made a principled and courageous stand against state sponsored religion in the public schools,” said Donna Lieberman, the NYCLU’s executive director. “They had the conviction to take their case all the way to the U.S. Supreme Court, achieving a victory that helped preserve the religious freedom of all Americans. Their contribution must not be forgotten.”Engel and eight other parents of students at Herricks High School in New Hyde Park sued the Commissioner of Education to contest the mandatory daily recitation of the Regents’ prayer in the school’s classrooms. The prayer, approved and recommended by the State Board of Regents in 1951, invoked God’s blessing on the students, parents, teachers and the country. Represented by the NYCLU, the parents took their case all the way to the U.S. Supreme Court, which decided Engel v. Vitale in 1962.
Bill Butler, a volunteer attorney for the NYCLU, represented the plaintiff parents throughout the process and before the Supreme Court. “It took tremendous courage, commitment and faith to shoulder this burden through the courts over nine years,” Butler said. “Steven did not give up despite consistent public criticism and defeat in the lower courts, and for that we are extremely grateful. ”Writing for a 6-1 majority, Justice Hugo Black said daily recitation of the Regents’ prayer in public schools violated the First Amendment’s Establishment Clause, which bars government-sponsored religious activity. Black emphasized that the court’s ruling was not anti-religious but sought to protect individuals’ religious beliefs against government intrusion. “It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance,” he wrote.
The reaction locally was vicious, but Engel and the other plaintiffs stood up for what they knew was right. Engel told Newsday that the parents who brought the suit were bombarded with crank calls and obscene and threatening messages calling them Communists and atheists. The assault included the burning of gasoline-soaked rags in the form of a large cross in the driveway of Lawrence Roth, another plaintiff.
“When we won the case, all hell broke loose, "Engel told the newspaper. “The dirty letters, the mid-night phone calls. I once received a call at work: ‘We’ve got your children.’ I took a taxi home from work in New York. I went to the school, but everything was OK.
”The lawsuit prompted the creation of the Nassau County Chapter of the NYCLU, which was formed from three local civil liberties clubs that had been active on the north shore, the south shore and mid-island. The other plaintiffs were Daniel and Ruth Lichtenstein, Monroe and Julia Lerner, Lenore Lyons, Lawrence and Frances Roth, and Engel’s wife, Thelma.
