Ellery's Epic Exploit

How A 16-Year-Old Pennsylvania Boy And His Family Won An Important Church-State Victory At The Supreme Court 50 Years Ago

In the late 1950s, Pennsylvania law was very specific about the role of religion in public schools: Every morning, 10 verses from the King James Bible followed by the Lord’s Prayer would come booming over the public address system.

Pennsylvania wasn’t unique in this practice. More than 30 states had simi­lar laws on the books. Students of all faiths and philosophies were often com­pelled to participate in what were fundamentally Protestant forms of worship.

But there were always those who knew this wasn’t right. Among them was Ellery Schempp, who in 1956 was a 16-year-old junior at Abington High School in the Philadelphia suburbs.

One day in November, Schempp brought a copy of the Quran to school with him and silently read it during the morning devotional. He refused to stop when a teacher ordered him to and was sent to the principal’s office and made to visit the guidance counselor.

“I wanted to show that there were other ‘holy books’ equally revered by other people,” Schempp said during a recent interview with Church & State. “The Quran was merely by accident; I did not know a thing about Islam. But my friend George’s father had a copy on his bookshelf. 

“It could just as easily have been some Hindu or Buddhist scripture” he added. “It was merely symbolic to challenge the view that Bible verses were unique; there were other claim­ants to ‘absolute truth’ and ‘sacred scripture.’”

That night at home, Schempp pecked out a letter to the American Civil Liberties Union (ACLU) on his dad’s typewriter, explaining what had taken place at his school. His timing could not have been better. As it happened, the ACLU had been interested in challenging school-imposed pray­er and Bible reading and believed the time was right.

A lengthy back-and-forth ensued be­tween the Schempp family and the ACLU. Although Ellery was a senior by the time the case was filed, his younger siblings Donna and Roger were still in Abington public schools. They would have legal standing to keep the case alive over the next few years.

Schempp had grown up with official school prayer. He remembers mumbling his way through the devotional exercises when he was little. As he got older, he began to question the school’s right to impose religion on   students.

“By high school, well trained as we were, some awareness, thinking and teen rebellion arose,” Schempp said. “There was enormous pressure to conform as the greatest goal in life – to be ‘The Man in the Gray Flannel Suit.’”

But Schempp had no desire to conform. He had been raised to ask questions, even about religion – not a common stance in Cold War America.

“It was one day when some kid read Genesis in 10th grade,” Schempp continued.  “I thought, ‘This is nonsense; this does not fit with the science that I know.’ I began to pay more attention. 

He mentioned his concern to some of his friends and most of them shared his apprehension.

“Then,” Schempp recalls, “I began to notice that Catholic kids actually recited a different version of the Lord’s Prayer. I thought this strange. And then I began to notice some of my Jewish friends who were visibly upset when Christmas and Easter passages came up.”

Added Schempp, “Nobody wanted to rock the boat. But I bounced off my thoughts with several friends. Many agreed – mostly because the devotions were ‘meaningless,’ and sometimes ridiculous or offensive.”

So Schempp decided to go ahead and rock the boat. His legal challenge, School District of Abington Township v. Schempp, went all the way to the U.S. Supreme Court, resulting in a landmark ruling striking down coercive, school-sponsored forms of prayer and Bible reading in public schools.

The decision, which will mark its 50th anniversary on June 17, still reverberates today every time there is a conflict over religion in public schools.

The Schempp ruling has been cited countless times by lower courts. The precedent it established – that public schools don’t have the right to sponsor religious exercises and pressure students to take part in them – has resurfaced in virtually every church-state case focusing on religion in public schools since. Public schools were powerfully affected.

But at the same time, the Schempp decision has spawned a great deal of confusion.  To this day, many Americans persist in believing that the ruling banned all forms of religious activity in public schools, even vol­un­tary ones.

Schempp has to be one of the most misunderstood cases in the history of the court,” said Stephen D. Solomon, who teaches First Amendment law at New York University’s Arthur L. Carter Journalism Institute. “Some conservatives have created an echo chamber by continually insisting that the Supreme Court kicked God out of the public schools. Their voices have been so loud and so persistent for so long that they’ve created a public perception at odds with what the Schempp decision really said.

“They’ve obscured the fact that Schempp was a near-unanimous decision, agreed upon by both liberals and conservatives on the court – and that it permits students to pray voluntarily and allows public schools to teach about religion in a nonsectarian way,” added Solomon, author of the 2007 book Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle Over School Prayer. “There have been few journalists and other commentators who have tried to set the record straight.”

The decision did indeed spark a backlash, and its shock waves are still being felt today. Religious Right leaders and their political allies have never made their peace with the Schempp ruling and have worked for five decades now to undermine it or nullify it outright through a constitutional amendment. Although these efforts have failed, groups like Americans United call for constant vi­gi­lance, aware that a public school system that welcomes all is a prime target for the Religious Right.

How did this important case come about? Although Ellery was willing to challenge religious activity in school, he wouldn’t have had the courage to see it through without the support of his family.

The Schempps, led by parents Ed and Sidney, were active in many causes. Long-time attendees of a Unitarian congregation, they fought for social justice at a time when many Americans looked askance at non-conformists who dared to challenge the power of the state.

The Schempps won the case at the lower levels of federal court, but Pennsylvania legislators were determined to save the religious practices. They hastily passed a law allowing students to opt out of the morning devotionals, but an appeals court nullified this scheme as well. Officials at Abington appealed the case to the Supreme Court.

A Philadelphia lawyer, Henry W. Sawyer III, argued the case for the Schempps on a pro bono basis. Sawyer, who worked with the ACLU, knew the case would be unpopular in some circles but took it on anyway.

If Sawyer and the Schempps were worried about the outcome of the case, their anxiety was eased somewhat by the 1962 high court ruling in Engel v. Vitale. In that decision, the court ruled 6-1 that recitation of an official school prayer written by education officials in New York was unconstitutional.

The Engel decision was a strong indication that the religious exercises being challenged in the Schempp case would face tough sledding. Indeed, when the Supreme Court issued its decision on June 17, 1963, it was lopsided. School-sponsored prayer and Bible reading were declared unconstitutional by an 8-1 vote.

Justice Tom Clark penned the majority opinion. In his decision, Clark cited several previous high court rulings that mandated government neutrality on matters of theology.

This neutrality, Clark wrote, “stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies.”

Clark also noted that religious freedom means “the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.”

But Clark was careful to point out that nothing in the ruling would bar objective discussion about religion in school classrooms.

“[I]t 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,” observed Clark. “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 consistently with the First Amendment.”

The sole dissenter in the case was Justice Potter Stewart. Stewart, who had also dissented in the Engel case, wrote that he considered the religious exercises voluntary and employed an argument still favored by the Religious Right today – that the First Amendment was merely intended to block the establishment of a national church.

Ellery had graduated by the time the ruling was issued, but his younger siblings kept the case going. The entire family attended the oral argument, and Schempp remembers crashing at a friend’s D.C. apartment and sleeping on the floor.

On the day the ruling came down, Schempp, by then newly married, was driving across the country with his bride. They heard the news on the radio, pulled off the highway and stopped at the first motel they came to and begged the clerk to let them watch the evening news. There was no television in the lobby of that motel, so the clerk sent them to one nearby.

Although the family kept a low profile during the case, they had to deal with some occasional harassment and hate mail. 

“We received about 5,000 letters, roughly one-third supporting us, one-third opposing in reasonable terms and one-third hateful and vituperative,” Schempp said. “My parents answered every letter with a return address. We were accused of being everything the writer hated – commies, Nazis, Catho­lics or Jews. Some were newspaper pictures smeared with excrement.” 

For Ellery, the biggest risk while the case was in the lower courts was incurring the wrath of W. Eugene Stull, the principal of Abington High School. Stull, a Methodist minister, supported the religious exercises in school and was incensed at Schempp’s lawsuit.

After the legal challenge was filed, Stull tried to hit Ellery where it would hurt the most by disrupting his plans for higher education. Labeling Ellery a “troublemaker,” Stull sent letters to the universities that Schempp had applied to, warning them not to enroll him.

Stull even telephoned officials at Tufts University in Boston after learning that Ellery had been accepted there, urging them to reverse their deci­sion. (The ploy failed miserably. Schempp graduated from Tufts with honors earning degrees in physics and geology, and he went on to earn a Ph.D. in physics from Brown University. He was employed as a physicist for decades, and his research contributed to the implementation of Magnetic Resonance Imaging scanners.)

Undoubtedly, some of the hostility that might have been directed at the Schempp family was deflected to another school prayer protestor – Madalyn Murray O’Hair. O’Hair, at the time a resident of Baltimore, filed a similar lawsuit against devotional Bible reading in the public schools there.

O’Hair, an outspoken atheist, became a flashpoint for controversy. Her case, Murray v. Curlett, reached the Supreme Court at the same time as the Schempp family’s challenge. Since the two cases raised identical issues, the high court consolidated the pair and heard them jointly.

The two families had decidedly different approaches to publicity. The Schempps didn’t exactly shun it, but they tended to keep a low profile. O’Hair, by contrast, cultivated media appearances and went on to write a book about her case. She used the publicity she garnered to launch a national organization, American Atheists.

Thanks to O’Hair’s visibility, the issue of school prayer became closely associated with her in the public mind. Today, many people think of O’Hair when the issue of school prayer comes up. The Schempps tend to get overlooked – even though both families played an equally important role.

Following the Schempp ruling, an enormous political backlash erupted. By the mid-1960s, more than 100 constitutional amendments designed to “restore” prayer to public schools had been introduced in Congress.

The drive for an amendment stalled in the House of Representatives, but a proposal in the Senate introduced by U.S. Sen. Everett Dirksen (R-Ill.) began to gather steam, and for a time it looked like it might pass.

Dirksen’s amendment enjoyed bipartisan support and was backed in part by a band of conservative Southern Democrats who were still smarting from the Supreme Court’s rulings striking down racial segregation. They looked at a school prayer amendment as a way to put the court in its place.

In his book School Prayer: The Court and Congress, the late church-state scholar Robert S. Alley explained how some behind-the-scenes political maneuvering derailed the Dirksen amendment. Alley noted that U.S. Sen. Birch Bayh (D-Ind.), who opposed the amendment, knew that some senators fretted over voting against it for fear of being tarred as anti-religious. Bayh put forth a symbolic resolution affirming the importance of religion in public life to give the wavering senators cover.

The gambit worked. When the prayer amendment came up for a vote, it received a simple majority but fell short of the two-thirds super-majority constitutional amendments need to pass.

School prayer amendments continued to be introduced throughout the 1970s, but none got a serious hearing until President Ronald W. Reagan took office. During his 1980 campaign, Reagan courted the Religious Right in part by vowing to support a school prayer amendment. An amendment was duly introduced and came up for a vote in the Senate on March 20, 1984, where it fell 11 votes shy of the two-thirds majority.

In 1996, then-House Speaker Newt Gingrich, again courting the Religious Right, proposed a new school prayer amendment. Gingrich asked a House ally, U.S. Rep. Ernest “Jim” Istook (R-Okla.) to spearhead the project. Istook worked with a coterie of Religious Right political and legal groups to draft an amendment.

The proposal that emerged did much more than promote official prayer in public schools. It also would have guaranteed taxpayer aid to religious institutions and permitted the display of sectarian symbols by government. Dubbed the “Religious Freedom Amendment,” the amendment was put to a vote in the House on June 4, 1998. Although it secured a simple majority of 224-203, it fell 61 votes short of two-thirds.

No school prayer amendments have been introduced in Congress this year, but that doesn’t mean the issue is dead. State legislators continue to look for ways to promote school-sponsored prayer.

Last year, Florida Gov. Rick Scott signed into law a bill designed to allow students to deliver “inspirational messages” – a euphemism for prayer – at school events. In Mississippi, a new law compels every public school district in the state to draft a policy on student-led prayer. (See “Religion Ruse,” page 11.)

Proposals like this show that the issue is still very much alive. Although much has changed in American society since Ellery Schempp launched his protest against school prayer in 1956, one thing hasn’t: Some people remain determined to use the public school system to inculcate sectarian views.

Schempp is equally determined to stop them. Over the years, he has remained a strong advocate for church-state separation. Schempp, who now lives in retirement in Medford, Mass., with his partner Arlene Germain, often speaks about his case at public events. Last year, he discussed it with an audience at Harvard Divinity School.

Schempp has even been honored by Abington High School. In 2002, he was elected to the school’s Hall of Fame. His listing on the school’s website notes his long list of achievements in physics and then goes on to point out that Schempp “Initiated school prayer suit against Abington which was eventual­ly decided by U.S. Supreme Court in 1963.”

The controversy over school prayer may still rage, but many analysts say the growing religious diversity in America has made official religious exercises in public schools increasingly impractical.

 “Resistance to Schempp by school districts themselves is much less common than it was in the first decade after the decision, and the vast majority of school districts comply with the decision,” NYU professor Solomon said. “This country is so much more religiously diverse than it was even in 1963, and many people don’t want the animosity that would inevitably come with a return of state-run devotional activities in the public schools. They understand that there would be insurmountable conflicts over whose prayers and whose holy books would be used.”