The Constitutional Principle: Separation of Church and State
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Two 20th Century Cases

Two 20th century cases that are misrepresented in some of Barton's publications:

Research and writing by Susan Batte, Esq

From The Myth Of separation, page 63-64, Barton writes:

If a Student prays over his lunch, it is unconstitutional for him to pray aloud,

Reed v. Van Hoven 237 F Supp.48 (W. D. Mich, 1965)

It is Unconstitutional for kindergarten students to recite: "We thank you for the flowers so sweet; We thank you for the food we eat; We thank you for the birds that sing; We thank you for everything." Even though the word "God" is not contained in it, someone might think it a prayer.

DeSpain v DeKalb County Community School District 255 F. Supp. 655 (N. D. Ill. 1966)

Research, legal analysis and writing by Susan Batte, Esq.

Reed v. Van Hoven.

Facts: Plaintiffs were the parents of school children who objected to the procedures established by defendant-school board members to accommodate religion in light of Schempp and Engel. Plaintiffs asked the court for an injunction preventing "any exercises of a religious nature from being conducted." Defendants' plan consisted of pre-school prayer sessions signified by the ringing of bells. One warning bell signaling to children that home rooms were being opened to allow children to pray. A second bell signaling that prayer time could begin, and a third bell signaling that prayer time had ended.

Issue: Is the school board's plan for accommodation of religion constitutional under Schemmp and Engel. (This should have been the issue, but the Court backs into a decision by suggesting an interim plan they think more nearly captures the spirit of Engel and Schemmp. )

Holding: Clearly the court thinks that the School board's plan is not an adequate solution. The Court, in its interim guidelines, eliminates the confusing bell system, moves pre- and post-school prayer sessions out of the homeroom and into other classrooms, allows for a moment of silence at the beginning of lunch, and lists several non-religious documents to be incorporated into a reading period. The Court does not say that such things should be incorporated into the school curriculum, nor does it establish any of these suggestions as laws or rules that must be followed by every school.

"This approach is by no means a final judgment of the court, nor should it be taken as a preliminary indication of a final judgment."

"However, even should the program successfully escape the prohibitions of the Establishment Clause, as administered it may possibly result in abridgment of rights of free exercise, and for this reason testimony may be required to determine precisely the effect which such a program has. "

The court did not grant the plaintiffs' injunction, but (and this is a big but) the court said that if the school did not follow the suggested policy (i.e., disregard the court and continued the practices it had in place) then the court would consider granting the injunction.

DeSpain v. DeKalb. At issue was a routine practice incorporated by a kindergarten teacher before dispensing milk and cookies to the children. The teacher had the children close their eyes, fold their hands in their lap and recite the following "poem:"

We thank you for the flowers so sweet
We thank you for the food we eat
We thank you for the birds that sing
We thank you for everything.

The court found that the above verse was not a prayer. The plaintiffs in this case were parents who had filed suit against the school district to enjoin the practice, and the court dismissed the plaintiffs suit. In other words, the Court most definitely did not hold that a nursery rhyme could not be recited. It held the nursery rhyme could be recited because it was not a prayer.

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