McKee, Duncan O.

English

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The Public Schools and the Bible

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THE PUBLIC SCHOOLS AND THE BIBLET HE FLEXIBLE WALL separating Church from State has again comeunder judicial scrutiny,1 this time in the New Jersey case of Tudor v.Board of Education.2 The Gideons International,; pursuant to theirnation-wide program of Bible dissemination, had requested and hadreceived permission of the Rutherford, New Jersey, Board of Educa-tion to distribute the King James version of the New Testament,Psalms, and Proverbs to public school children. The Bibles were tobe distributed without charge, in the school building, after regularschool hours, and only with the written consent of the children's parents.There was no religious propaganda of any kind in the Bibles, and therewas to be no accompanying religious service. Before the program couldbe effected, the parent of a Jewish student sued to enjoin the proposeddistribution.4  The trial court denied the injunction, but on appeal the'During the last ten years, the United States Supreme Court has considered threewidely publicized cases in this field of constitutional law. The first was Everson v.Board of Education, 330 U.S. 1 (1947), in which the Court (5:4) permitted RomanCatholic children in New Jersey to use the public school bus system for transportationto parochial schools. The majority ruled that this constituted a public service functionof the state. Messrs. Justices Jackson and Rutledge each wrote strong dissents de-nouncing the practice as a violation of the doctrine of separation between Church andState. A year later, the Court, in People ex rel. McCollum v. Board of Education,333 U.S. 203 (1948), forbade the use of public school buildings for the teaching ofreligion (8:-). However, in Zorach v. Clausen, 343 U.S. 306 (1952) (the "releasedtime" case), the Court (6:3) modified the McCollum decision by permitting the teach-ing of religion to public school children on released time outside the school buildings.Mr. Justice Douglas, for the majority, said (at 312-14): "The first amendment,however, does not say that in every and all respects there shall be a separation ofChurch and State. . . . When the state encourages religious instruction, or cooperateswith religious authorities . . . it follows the best of our traditions. . . . But we findno constitutional requirement which makes it necessary for government to be hostile toreligion and to throw its weight against efforts to widen the effective scope of re-ligious influence. The government must be neutral when it comes to competition be-tween sects." Mr. Justice Black, who wrote the McCollum decision, dissented, claim-ing that the two cases were indistinguishable, 343 U.S. 306, 316 (1957). See Beth,The Wall of Separation and the Supreme Court, 38 MINN. L. REv. a'5 (954).2 ioo A.zd 857 (N.J. 1953).O The Gideons International, an Illinois corporation, is exclusively a businessmen'sorganization, with a separate auxiliary for women. Membership is closed to pro-fessional persons, and only professed Christians (i.e. members of a church which makessuch a belief a condition of membership) may join. See GiDEoNS CONsT. ART. III.'The procedure in this case was rather involved. Ralph Lecoque and BernardTudor, Roman Catholic and Jewish parents respectively, joined as parties plaintiff,DUKE BAR JOURNALNew Jersey Supreme Court reversed.5The court, speaking through Mr. Justice Vanderbilt, held that theKing James version of the Bible is a sectarian work in that it is unac-ceptable to the Roman Catholic and Jewish faiths.' The court felt thatthe proposed distribution would amount to a denial of the First Amend-ment's guarantee of religious freedom7 in that it would engender feel-ings of embarrassment among those who-chose not to accept the GideonBible for reasons of conscience.8The New Jersey court's reasoning in the Tudor case is twice con-founded by the same court's decision in Doremus v. Board of Edueca-tion. There the court had held that the repeating of five Old Testa-joining the board of education and the State of New Jersey as defendants. Before trial,the suit against the state was discontinued, and, with plaintiffs' consent, the Gideons'International intervened as party defendant. Before trial, Ralph Lecoque transferredhis son to a parochial school, thus rendering the questions involved moot as to him.Mr. Justice Vanderbilt, in his opinion, nevertheless relied heavily on the RomanCatholic opposition to the King James version of the Bible. Tudor v. Board of Educa-tion, oo A.zd 857, 859, 865 (i953).It should be noted that the boards of education in the majority of our large citieshave refused the sort of permission asked by the Gideons here; e.g., New York, Chicago,Los Angeles, Detroit, and St. Louis. Much of the Gideons' success has been in smallercommunities. 'Appeal was originally to the Appellate Division, but the case was removed tothe New Jersey Court by special motion. N.J. SUPREME COURT RULES, 1:10-3(-953).a Opposition to the New Testament by the Jewish faith is readily appreciated. TheRoman Catholic Church does not regard the King James version of the Bible as anauthorized translation of the original scriptures. While the best known authorizedRoman Catholic translation is the Douay version, the Church has authorized otherswhich are translations of Jerome's Vulgate. WOYWOD, THE NEw CANON LAW 288-29o( 3 d ed. 1918).7U.S. CONST. AMEND. I: "Congress shall make no law respecting an establishmentof religion, or prohibiting the free exercise thereof . . .' The First Amendment hasbeen held applicable to the states through the Fourteenth Amendment. Zorach v.Clausen, 343 U.S. 306 (1952); McCollum v. Board of Education, 333 U.S. 203(948); Everson v. Board of Education, 330 U.S. (x947) i Cantwell v. Connecticut,31o U.S. 296 (1940).'In trial court, the plaintiffs had presented several psychologists as witnesses totestify that the proposed distribution of the Gideon Bible would result in division amongthe pupils along religious lines. Plaintiffs' Brief, pp. 77-33, Tudor v. Board of Edu-cation, ioo A.zd 857 (953). The Gideons claimed that the psychologists' testimonywas unreliable in that they had not been apprised of the method of distribution to beused. Defendants' Brief, pp. 29-3o, Tudor v. Board of Education, supra.07 N.J. Super. 442, 71 A.2d 73z (595o). An appeal was taken in this case tothe United States Supreme Court, but was dismissed by a 6 to 3 vote. 34z U.S. 429(x95i). Mr. Justice Jackson (at 433-34), ruled that there was no case or contro-versy because appellants had shown no out-of-pocket loss, and . .. there is no aver-ment that the Bible-reading increases any tax they do pay or that as taxpayers they are,[VOL. 41954] NOTES 129ment verses and the Lord's Prayer in a public school was a non-sectarianexercise, and had cited with approval a long list of cases wherein theBible had been held to be non-sectarian.' 0 Instead of overruling theDoremus case, however, the New Jersey court specifically upheld it"and compounded the non sequitur by citing two other cases whichevinced conclusions in direct conflict with that of the Doremus case.' 2An outright acceptance of the Tudor reasoning would seem to compelthe conclusion that all translations of the Bible are sectarian, since no oneis accepted by all faiths. This would lead to the ultimate conclusion thatBible-reading in public schools is a sectarian exercise, an outcome which,in turn, would require the repudiation of an imposing array of contrarydecisions, including Doremus.13will or possibly can be out of pocket because of it. . . . It is apparent that thegrievance which it is sought to litigate here is not a direct dollars-and-cents injurybut is a religious difference." (The appellants in the Tudor case bore no expense,since the Gideons accepted the costs of the Bibles.) In the Doremus case, the NewJersey Supreme Court was composed of exactly the same justices who sat on it for theTudor case.10See, e.g., Moore v. Munroe, 64 Iowa 367, 2o N.W. 475 (884) (reading ofthe Bible in a public school is but "casual worship") 5 Billard v. Board of Education,69 Kan. 53, 76 Pac. 422 (904) (Bible not included in state constitution's ban onsectarian doctrine taught in public schools) ; Pfeiffer v. Board of Education, 18 Mich.560, 77 N.W. 250 (,898) (public school Bible-reading held to be an important deviceto inculcate fundamental morality); Doremus v. Board of Education, 5 N.J. 435, 75A.2d 88o (195o) (reading five Old Testament verses and repetition of the Lord'sPrayer in public school is a non-sectarian exercise). Contra: Ring v. Board of Educa-tion, 245 Ill. 334, 92 N.E. 251 (i91o) (public school Bible-reading wrong in thatit compels school children to join a form of worship). For decisions holding theKing James version of the Bible non-sectarian, see Evans v. Selma Union High School,193 Cal. 54, 222 Pac. 8oi (1924) (King James version a non-sectarian book, andmay be purchased by school library) ; Vollmar v. Stanley, 81 Colo. 276, 255 Pac. 61o(927) (reading of King James version in a public school is not unlawful); Hackettv. Brooksville Graded School District, Izo Ky. 6o8, 87 S.W. 792 (19o5) (constitu-tional ban against sectarianism in the public schools meant keeping the church out ofschool and did not forbid reading from the King James version)5 see also Church v.Bullock, 104 Tex. i, o9 S.W. x15 (i9o8) (compulsory attendance at reading ofKing James version in public school permissible). Contra: Weiss v. City of Edgerton,76 Wis. 177, 44 N.W. 967 (i89o) (reading from a disputed scripture is a sectarianexercise)."L Tudor v. Board of Education, ioo A.zd 857, 866 (N.J. 1952)."1Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251 (191o), note io su pra;Weiss v. City of Edgerton, 76 Wis. 177, 44 N.W. 967 (i89o), note io supra. Thecourt in the Doremus case ruled that these two cases were not controlling in NewJersey since both forbade the reading of any version of the Bible in the public schools."Perhaps one explanation for the court's inconsistency is the influence of policyand public opinion. In the Doremus case there was no organized religious opposi-tion to the Bible-reading, while in the Tudor case there was a dispute between re-ligious groups. An interesting sidelight on this point is the fact that the AmericanDUKE BAR JOURNALMoreover, the Tudor decision runs amuck of the reasoning of theDoremas case in a second respect. The question of embarrassment tothose students who did not care to listen to Bible-reading never arose inthe Do -emus case. Yet there would seem to be no less embarrassmentinvolved in leaving the classroom in order to refrain from listeningthan there is in refraining from accepting free Bibles. 4Although the constitutionality of the distribution of Bibles in publicschools has never been adjudicated,a the great weight of authority inanalogous cases might well cause doubts as to the soundness of the Tudordecision."6 The bulk of judicial opinion concerning the sectarian natureof the Bible has been focused upon the constitutionality of Bible-readingin public schools, 17 as in the Daremus case. With but two exceptions, 8the state courts have unanimously held that the Bible is a nonsectarianbook, regardless of the particular translation, 0 and a fortiori, that thereading of the Bible in public schools does not violate the doctrine ofseparation of Church and State.2Jewish Congress filed a brief arnicus curiae in the Doremus case, urging that Bibl.-reading from the Old Testament be permitted, and yet this same organization, throughits parent, the National Community Relations Advisory Council, filed a brief amic uscuriae in the Tudor case for the plaintiff, and, in urging the court to enjoin thedistribution of the New Testament, said: "The First Amendment's ban on laws re-specting the establishment of religion prohibits state aid to religion even on a non-preferential basis."" Reading from any part of any version of the Bible would be objectionable toatheists and Mormons. Reading from the New Testament would be objectionable topersons of the Jewish faith. Reading from the King James version would be objection-able to the Catholics. So it would seem that public school Bible-reading would causeembarrassment to a goodly portion of any average student body no matter which versionis read. Non-assenters would be set apart from those who wished to participate in thereading.'GBut cf. Miller v. Cooper, 56 N.M. 355, 244 P.2d 520 (1952) where theSupreme Court of New Mexico forbade certain public school teachers from displayingreligious pamphlets on classroom tables and inviting students to take them home."See cases cited in note io supra. 17 Ibid."s See cases cited in note sa supra." Hackett v. Brooksville Graded School District, i2o Ky. 6o8, 617, 87 S.W. 792,794 (19o5): "The book itself, to be sectarian, must show that it teaches the particu-lar dogmas of a sect as such, and not alone that it is so comprehensive as to includethem by the partial' interpretation of its adherents. Although this question has neverbeen ruled upon by the United States Supreme Court, in Vidal v. Girard's Executors, zHow. 127, 200 (U.S. 1844), the Court did state, as dictum, that the New Testamentwas not a sectarian book.20 Evans v. Selma Union High School, 193 Cal. 54, 59, 222 Pac. So, 803 (924):"That the authors of religious books belong to a sect or church does not necessarily maketheir books of a sectarian character. Nor does the fact that the King James versionis commonly used by Protestant churches and not by Catholics make its charactersectarian. . . . What we have said of the King James version is equally applicableto the Douay [Catholic] version."[VOL. 41954] NOTESA possible escape from entanglements caused by the Tudor decisionis to be found in the rationale of McCollum v. Board of Education."There, the United States Supreme Court forbade the use of public schoolproperty for religious programs, although they were instigated, not bychurches, but by an association of Jewish, Catholic, and Protestant lay-men. Such a program, said the Court, would be a utilization of a tax-established and tax-supported school system for the propagation of re-ligious beliefs. "And it falls squarely under the ban of the FirstAmendment. 2Certainly the adoption of the McCollum reasoning into the Tudordecision would have led the New Jersey Supreme Court into far lessdevious paths, and would have avoided inconsistencies which bid fairto open the door to additional litigation.23DUNCAN 0. MCKEE21 333 U.s. 203 (947).2'Id. at 209-210.23 The court would then be able to ignore altogether the perplexing questions re-garding the sectarian nature of the Bible and considerations of the voluntary methodof distribution, and could base its decision on strong legal precedent.

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The Public Schools and the Bible

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