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MAY v. COOPERMAN

October 24, 1983

JEFFREY MAY, individually, JEAN ROSS, as natural parent of DAMON ROSS, an infant, and JEAN ROSS, individually, BONNIE SCHORSKE, as natural parent of MARK TULLOSS, an infant, and BONNIE SCHORSKE, individually, BRENDA BUTLER, as natural parent of CARY BUTLER, an infant, and BRENDA BUTLER, individually, GARY DREW individually, Plaintiffs,
v.
DR. SAUL COOPERMAN, Commissioner of the Department of Education, NEW JERSEY DEPARTMENT OF EDUCATION, EDISON TOWNSHIP BOARD OF EDUCATION, OLD BRIDGE TOWNSHIP BOARD OF EDUCATION, Defendants and ALAN J. KARCHER AS Speaker of the New Jersey General Assembly, the NEW JERSEY GENERAL ASSEMBLY, CARMEN A. ORECHIO as President of the New Jersey Senate and the NEW JERSEY SENATE, Defendants-Intervenors



The opinion of the court was delivered by: DEBEVOISE

 This is an action for declaratory and injunctive relief brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek to have declared unconstitutional a State statute, namely, New Jersey P.L. 1982, Ch. 205 which provides that:

 
1. Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day for quiet and private contemplation or introspection.
 
2. This act shall take effect immediately.

 Plaintiffs are public school children and parents of such children who either are not religious and view the minute of silence as an enforced religious observance or else are religious and oppose required participation in this particular observance. One plaintiff, Jeffrey May, is a teacher in the Edison Township school who declined to conduct a minute of silence in his classroom on the ground that it is a religious observance and who was threatened with discipline for this failure.

 Defendants are Saul Cooperman, Commissioner of New Jersey's Department of Education which is responsible for implementing the minute of silence bill, the Edison Township Board of Education and the Old Bridge Township Board of Education.

 The statute became effective on December 16, 1982 when the New Jersey State Senate overrode the Governor's veto, the Assembly having overridden the veto on December 13. By reason of the approaching Christmas recess the full effect of the statute was not felt until January 1983, when the public schools reopened.

 The original defendants did not take an active role in the defense of the case. This inactivity flowed, no doubt, from the fact that the State's Governor and Attorney General had concluded that the statute violated the United States Constitution and that they could not in good faith defend it. However, the intervening defendants vigorously contested the action both during pretrial discovery proceedings and at the trial itself.

 The trial commenced on September 13, 1983. Both sides produced extraordinarily useful witnesses. Each witness was articulate and effectively testified as to a significant aspect of the case. The witnesses viewed the statute, its purpose and effect from very different perspectives. Each witness held strong views concerning the educational and/or religious implications of the statute. All of their views were essential for an understanding of the issues and contributed significantly to the resolution of these issues.

 The Facts

 In the early 1960's the United States Supreme Court held that school-sponsored prayer and Bible reading in the public schools are unconstitutional. School District of Abington Township v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963); Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962). These decisions required modification of the exercises which traditionally had been conducted in New Jersey's public schools at the start of each day. These exercises typically included reading from the Old Testament and recital of the Lord's Prayer.

 There was very substantial opposition to the Supreme Court's decisions, and in many parts of the United States various measures were proposed to change the ruling or evade it. In New Jersey legislation was proposed from time to time with the rather obvious purpose of reintroducing opening prayer in some form in the public schools.

 At first such proposed legislation specifically mentioned prayer. For example, A. 146 (1969), which authorized "a brief period of silent prayer or meditation", was vetoed by Governor Hughes who had doubts as to its constitutionality. In 1971 a similar bill (A. 597 (1970)) was vetoed by Governor Cahill on similar grounds.

 In 1978 the legislature adopted A. 648 which mandated "a brief period of silent meditation" at the beginning of each day and explicitly disavowed any intent to create a religious exercise. Governor Byrne declined to approve the bill and it failed to become law. He based his decision in part on the bill's possible violation of the Establishment Clause or the Free Exercise Clause of the First Amendment and in part on the lack of any useful purpose of the bill.

 In 1980 Assemblyman Zangari introduced A. 2197 which called for a one minute period of silence in each public school during each school day. On May 4, 1981 Governor Byrne returned this bill unsigned on the grounds that it was either unconstitutional or unnecessary. *fn1"

 The statute which is the subject of this case was introduced as Assembly Bill No. 1064 on March 8, 1982. Its principal sponsor was Assemblyman Zangari, who was joined by 54 other members of the Assembly. Assemblyman Zangari had previously introduced three other bills on related subjects: one calling for an amendment to the United States Constitution to permit prayer in public places, including public schools (A. 162 (1980)), another providing for a period of prayer or scripture reading in each school before the beginning of the school day (A. 2196 (1980)), and still another providing for a one minute period of silence after the beginning of each school day (A. 2197 (1980), referred to above).

 The New Jersey legislature does not preserve an official record of its hearings and debates, and consequently this source of information concerning the purpose of legislation is not available. *fn2" However, several witnesses described some of the legislative committee meetings which they attended by reason of their interest in the Bill.

 Joseph Chuman, leader of the Society for Ethical Culture for Bergen County testified in opposition to the Bill before Senator Feldman's Education Committee on June 21, 1982. The hearing on the Bill lasted 1-1/2 to 2 hours. Three committee members, including Senator Feldman, were present. Two representatives of education organizations and a representative of the American Civil Liberties Union spoke against the Bill. Assemblyman Zangari spoke in favor. He argued that it would serve a useful psychological purpose. He pointed out that although he was a Catholic he went to Protestant schools and was encouraged to participate, which never did him any harm. When Chuman spoke to him afterwards Assemblyman Zangari asserted that he would be happy to see verbal prayer and Bible reading in the schools. Asked about the effect on atheists, he stated that they were so few in number their views could be discounted. Mr. Chuman could recall no discussion before the Committee of the educational purposes of the Bill.

 Marianne Rhodes, Associate Director of Government Relations of the New Jersey School Board Association, attended a May 17, 1982 hearing of an Assembly Committee and a September 23, 1982 hearing of the Senate Education Committee. She made memoranda of the discussions concerning Bill A. 1064. At the Assembly Committee hearing Assemblyman Zangari stated that the Bill had been reduced to 54 words and that it was important that society get back to deeply embedded religious values. He quoted President Reagan as advocating adoption of a constitutional amendment allowing school prayer.

 Ms. Rhodes recorded that at the September 23 Senate hearing Senator Ewing and Assemblyman Zangari spoke for the Bill. In response to Senator Feldman's question why the Bill was necessary since students could pray whenever they wished, Assemblyman Zangari stated that "They [students] publicly won't do it [pray] unless they are directed."

 The Rev. Dudley E. Sarfaty is Associate General Secretary of the New Jersey Council of Churches, a group composed of representatives of 15 Protestant denominations. He attended the sessions of the Assembly at which the question of overriding the Governor's veto was debated. He made notes of these sessions. Assemblyman Michael F. Adubato urged that it would be a good thing if the State subsidized parochial education, and the Bill was a step in the right direction. Senator Dumont stated that the kind of ceremony required by the minute of silence Bill would cut down crime and disruption and that the legislature should not be rigid on matters of church and state. Senator Cardinale asserted that "We know what the people want" and asked rhetorically whether the members of the State Senate were the servants of the people or the courts. The only argument which Rev. Sarfaty heard touching on possible educational benefits of the Bill was Senator Dumont's assertion that the minute of silence would cut down crime and disruption.

 It is significant what those who opposed the Bill conceived its purposes and effect to be, because in many instances they were among those most directly affected by it.

 The Ethical Cultural Society of Bergen County styles itself as a liberal religious organization, the purpose of which is to further respect for the individual. It viewed the Bill as an attempt to return prayer to the public schools in another guise and opposed the Bill in the legislature.

 The New Jersey School Board Association is a body created by statute comprised of representatives of 611 school districts in the State. Its purpose is to promote public education in New Jersey and to assist local school boards. In the past, at the direction of a very substantial majority of the delegates from the constituent school boards, it opposed legislative efforts to mandate prayer or silent meditation in the public schools on the ground that the practice had no educational value. A small minority of the Association's delegates opposed the Association's position on the ground that prayer should be returned to the schools. By virtue of the strong stand which the delegates had taken on previous prayer and meditation bills, the Association's directors urged the legislature to defeat Bill No. 1064. The rationale offered for its adoption, the calming effect which a moment of silence would have upon students, was viewed as a pretext for a religious purpose.

 The American Baptist Churches of New Jersey, the coordinating body of 235 American Baptist Churches in the State, has consistently opposed the prayer and meditation bills introduced into the New Jersey legislature. It has done this on religious grounds. The mandated silence was viewed as an attempt by the State to impose something having the appearance and nature of a religious observance. At the very heart of the American Baptist faith is the tradition of religious liberty and opposition to any move by the state to intrude into religious affairs. Legislation mandating prayer, meditation and silence is conceived to be state intrusion into religious matters, the effect of which will be to cheapen and "trivialize" true religion. Significantly some American Baptist pastors and members did not agree with the position taken by their denomination's coordinating body. They did not agree because they viewed the minute of silence Bill as a useful way to bring religion into the schools.

 The New Jersey Education Association is a labor organization having 117,000 members working in New Jersey's public schools. Of this number 84,000 are teachers. The organization opposed Assembly Bill 1064, perceiving it to be a back door approach to bringing prayer into the public schools.

 Despite the opposition, both the Senate and the Assembly voted to override the Governor's veto of the minute of silence Bill and it became law on December 16, 1982. It was in effect only briefly before the temporary restraining order was issued in this case, but it is instructive to examine the impact which the Bill had in several school districts during the short period when it was being implemented.

 The intervenors produced evidence of experiences in the Sayreville school system through the testimony of an elementary school teacher, Evelyn A. Swenson, the testimony of an elementary school principal, John D. Singer, and the tape of a CBS television news broadcast showing interviews of students, a school board member and teachers after implementation of Assembly Bill 1064.

 Sayreville is a community having a large number of middle income, blue collar inhabitants and a large number of first and second generation citizens of Central European and Scandinavian ancestry. It also has Black, Asian and Hispanic inhabitants.

 For many years the Sayreville public schools had commenced each day with a psalm, the Lord's Prayer, the salute to the flag and a patriotic song. In 1969, following the Supreme Court's school prayer decision, the Sayreville Board of Education adopted a resolution which was designed to give people an opportunity to pray. The resolution, which was moved by Board member DiPoalo provided:

 
Approval was granted for a 2 minute meditation period to be instituted in our school system after the salute to the flag in the morning for any child who wants to pray, with the provision that no student be forced to pray if he is unwilling, nor deny any student the right to pray.

 From that time on all the Sayreville public schools have commenced the day with opening exercises which culminated in a moment of silence. Soon after adoption of the 1969 resolution it became apparent that two minutes of silence was not feasible and by tacit agreement the period of silence was reduced in practice to 30-45 seconds.

 Mrs. Swenson testified that at the outset she explained to students the meaning of meditation as silent, private, serious contemplation or thinking. She instructed her students to close their eyes in order that they would not distract each other. It was an opportunity to pray, but no one was required to do so. Some children sat with their hands clasped. Once or twice she noticed a child crossing himself. No parents or children ever expressed concern about the practice, and Mrs. Swenson viewed the ceremony as a helpful way to start the school day. On other occasions during the day she uses periods of silence for specific purposes. For example in science class she may ask the students to maintain silence and determine how many different sounds they can hear. Or in reading class she may ask the students to imagine a particular person or event.

 In 1978 the 1969 resolution was modified by the adoption of Policy 808 specifying procedures for opening exercises. It provided for the salute to the flag as a part of each day's opening exercises and stated that, "Opening exercises may also include the singing of patriotic songs and a moment of silent meditation."

 Although the language of Policy 808 differed from the 1969 resolution in that there was no reference to prayer and in that the mandated two minutes of silence was changed to a moment of silence, there was in fact no change in the Sayreville opening exercises after 1978. The effect of the 1978 enactment was simply to ratify the ...


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