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Sills v. Board of Education of Hawthorne

Decided: September 30, 1963.

ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND THE STATE BOARD OF EDUCATION, PLAINTIFFS,
v.
THE BOARD OF EDUCATION OF HAWTHORNE, NEW JERSEY, ET AL., DEFENDANTS



Pashman, J.s.c.

Pashman

This is the return date of an Order to Show Cause why the defendants should not be enjoined from permitting Bible reading in the Hawthorne public schools.

The factual background of this motion will be explored briefly at the outset. On June 17, 1963 the United States Supreme Court, in the companion cases of Abington School District v. Schempp and Murray v. Curlett , 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 844, held a law of the State of Pennsylvania and a rule of the Board of School Commissioners of Baltimore City, Maryland, unconstitutional.

On June 26, 1963 the New Jersey Attorney General at the request of the Commissioner of Education rendered an opinion in which he stated that R.S. 18:14-77 and 78 were within the strictures of the Abington and Murray cases and therefore unconstitutional. R.S. 18:14-77 requires the reading without comment, in each public school classroom, of at least five verses from the Old Testament. R.S. 18:14-78 forbids any religious service or exercise in the public schools except

the reading of the Bible and the repeating of the Lord's Prayer.

The Attorney General's opinion was requested pursuant to N.J.S.A. 52:17A-4(b), (c) and (h) by the Commissioner of Education. After receipt of the opinion, the Commissioner notified all county and local superintendents of schools that the practices authorized by R.S. 18:14-77 and 78 were unconstitutional and prohibited in the public schools.

On September 3, 1963 the Hawthorne Board of Education passed a resolution to the effect that Bible reading was not to be halted. The apparent ground for the passage of the resolution was that the United States Supreme Court decisions were not directly applicable to the New Jersey statutes heretofore mentioned. As a result of the action of the Hawthorne Board of Education, there is widespread indecision in the State as to the applicability of these decisions to the New Jersey statutes and practices.

Plaintiffs contend that preliminary and permanent injunctive relief is necessary because:

1. The Abington and Murray decisions apply to the New Jersey statutes.

2. Teachers, principals and superintendents of the New Jersey public school system take an oath to uphold the Constitution of the United States pursuant to N.J.S.A. 18:13-9.1, 18:13-9.2, 18:13-9.3, and 41:1-3 and those who oppose the resolution are being forced to violate their oaths.

3. Defendants, as well as those who are forced to comply with the resolution, may be liable to federal criminal prosecution under 18 U.S.C.A. , § 242 (deprivation of rights under color of law) and 42 U.S.C.A. , § 1987 (prosecution for violation of certain civil rights).

4. Teaching, directly or by example, in open defiance of the United States Constitution as interpreted by the Supreme Court is illegal and poor moral ...


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