by Bruce J. Dierenfield. Lawrence, Kansas: University Press of Kansas, 2007. 240pp. Cloth. $35.00. ISBN: 9780700615254. Paper. $15.95. ISBN: 9780700615261.Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. Email: richard.glenn [at] millersville.edu.
pp.689-692
Following WORCESTER v. GEORGIA (1832), in which the U.S. Supreme Court under the leadership of Chief Justice John Marshall declared that the Cherokee Nation was a sovereign political community, President Andrew Jackson refused to enforce the Court’s ruling, alledgedly remarking, “John Marshall has made his decision. Now let him enforce it.” Powerless to do so, the justices soon witnessed the removal of the Cherokees to Indian Territory. DRED SCOTT v. SANDFORD (1857) held that blacks, whether enslaved or emancipated, were not “citizens” of the United States and, therefore, could claim none of the rights and privileges which the Constitution provided. The case played a major role in bringing about the Civil War. BROWN v. BOARD OF EDUCATION (1954) invalidated the longstanding “separate but equal” doctrine in the field of public education, thus precipitating a revolution in race relations. And ROE v. WADE (1971), which recognized a constitutional right to abortion, elevated abortion to the national political agenda, where it has remained front and center for thirty-five years.
Yet, “[w]hat landmark decision was more openly disregarded than WORCESTER v. GEORGIA, greeted with more shock and criticism than DRED SCOTT v. SANDFORD, affected more school districts than BROWN v. BOARD OF EDUCATION, and brought together conservative Roman Catholics and fundamentalist Protestants in common cause long before ROE v. WADE?” The answer: ENGEL v. VITALE (1962), the celebrated and infamous “school prayer” decision. Or so says the preface to THE BATTLE OVER SCHOOL PRAYER: HOW ENGEL V. VITALE CHANGED AMERICA. The book, written by Bruce J. Dierenfield, professor of history at Canisius College, is part of the impressive Landmark Law Cases & American Society series. The series, which now boasts more than forty titles, includes volumes on a variety of judicial dramas in every generation of American history – from the Salem Witchcraft trials of the 1690s to the affirmative action cases in 2003. A complete list is available at
http://www.kansaspress.ku.edu/printbyseries.html (accessed 16 July 2007).
THE BATTLE OVER SCHOOL PRAYER, thankfully, is not an exhaustive digest on separation of church and state or Establishment Clause jurisprudence. Instead, set in the context of religious education in public schools, it examines the historical, legal, and political significance of one important case – the one that addressed the constitutionality of prayer as part of [*690] formal exercises in public schools. THE BATTLE OVER SCHOOL PRAYER, like the other titles in the series, is written for students and general readers. The language is not technical; the story easy to follow. The legal analysis is clearly deemphasized: The author is more interested in informing the reader of the events that gave rise to the case, the thoughts and feelings of the participants, and the effects and significance of the decision than he is in analyzing the legal and constitutional reasoning that led to the opinion. As such, it reads much more like history than law. Dierenfield does not provide formal citations throughout the book, although the preface states that the information comes from original documents; public records; newspapers; and interviews with the participants – including the school board members, the five families who participated in the lawsuit, the attorneys who argued the cases, the trial judge, school administrators, teachers, librarians, and students.
The narrative divides into nine chapters – two on religious influences in the American colonies and United States; four on ENGEL v. VITALE; and three on other important Supreme Court cases involving school prayer, Bible reading, and religious instruction in public schools. The book concludes with a chronology of major events in this area, from 1647 to 2000, a list of major U.S. Supreme Court religion cases, and a bibliographic essay. The bibliographic essay contains the primary and secondary sources consulted by the author and follows nicely the plan of the book.
Chapter One focuses on religious devotion in America from the colonial era to the Civil War. From the settlements at Jamestown and Plymouth Rock to the theocratic constitutions of various states lasting into the nineteeth century, religion was clearly a social phenomenon of great importance. Dierenfield kindly avoids a lengthy discussion of the disestablishment views of the Founding Fathers, focusing instead on religious pluralism, religious enthusiasm, and the variety of religious practices common in public schools prior to the Civil War. Of particular interest is the discussion of the role of anti-Catholicism in keeping religion in public schools, perceived as a way to transform Catholic immigrant children into loyal Americans. The second chapter looks at religious influences in public schools between 1865 and 1943 and at local, state, and national efforts – legislative and judicial – to curtail that influence. By 1880, thirty-seven states prohibited the use of state funds to support religious education. Even so, most school officials operated under the assumption that so long as students were not coerced into participating in religious exercises, no violation occurred. Dierenfield chronicles a number of lesser known state cases involving school devotions, thus giving context for the later, more well-known, cases to be decided by the Supreme Court.
Chapter Three discusses the three major pre-ENGEL Supreme Court Establishment Clause cases that raised questions about the role of religion in public schools – EVERSON v. BOARD OF EDUCATION (1947), the case in [*691] which Justice Hugo L. Black wrote Thomas Jefferson’s “wall of separation” metaphor into constitutional law, and two “released time” program cases, McCOLLUM v. BOARD OF EDUCATION (1948) and ZORACH v. CLAUSON (1952). Dierenfield refers to Justice Black’s opinion in EVERSON as “schizophrenic”: The Establishment Clause does not allow the “slightest breach” in the wall of separation . . . but spending taxpayer money to transport children to parochial schools does not surmount that wall.” Justice Felix Frankfurter later referred to Black’s opinion here as an example of Black’s propensity “to utter noble sentiments and depart from them in practice.” As is widely known, Justice Black was raised a devout Southern Baptist and regularly taught a Sunday School class in Birmingham, Alabama. But Dierenfield notes that by the time EVERSON was decided, Black had long since “drifted into agnosticism.”
The heart of the book comes in chapters four through seven. The fourth chapter examines the politics behind the decision of the school board to adopt the twenty-two word nondenominational prayer. Although the prayer was proposed by a group of ministers, priests, and rabbis and adopted by the New York Board of Regents in 1951, it was not until 1958, when Roman Catholics took control of the Herricks School Board, that the district teachers were directed to recite the prayer. Chapter Five looks at the decision of five families to challenge the constitutionality of the prayer and their planning for the case with legal counsel. Diernfield gives appropriate credit to Lawrence Roth, whom he calls the “now-forgotten force” behind the ouster of government-sponsored school prayer, and William Butler, the thirty-four year old lawyer for the New York Civil Liberties Union (NYCLU), who was chosen to represent the families in large part because of his Catholicism, the NYCLU having decided that it did not want a Jewish lawyer to argue the case.
The story of the trial and subsequent appeals appears in Chapter Six. This chapter delves briefly into the legal strategies of the plaintiffs and defendants and describes well the atmosphere in the courtroom and arguments advanced in the trial. Most every student of constitutional law is familiar with the U.S. Supreme Court’s decision in this case. But the trial proceedings and the trial judge’s painstaking decision – which stated that accommodation was permissible, but compulsion was not – are often overlooked in the literature. In this chapter, the trial court gets equal billing with the Supreme Court.
The seventh chapter explores the divided reaction from the participants, school administrators, the press, political and religious leaders, and legal scholars. Dierenfield does a commendable job of using newspaper articles to give the reader a feel for the often visceral reactions to the case among certain conservative groups. He also details how the plaintiff families suffered – accusations, crank calls, hate mail, and death threats, and so forth. Dierenfield notes that one plaintiff family received eight thousand angry telephone calls in a single week. (If accurate, this is one phone call every seventy-five seconds for a full week!) [*692]
Chapter Eight looks at two companion Supreme Court decisions handed down the following year РABINGTON v. SCHEMPP (1963) and MURRAY v. CURLETT (1963). And the final chapter brings the reader up-to-date with both political and judicial happenings in this area since 1963. Efforts to overturn the decision by constitutional amendment have regularly been introduced, but never successfully. And the justices have ruled in cases involving public displays of the Ten Commandments, moments of silence for voluntary prayer in public schools, the public displays of cr̬ches and nativity scenes, equal access to public school facilities for religious groups; graduation prayers at public schools, and invocations at public high school football games. These two chapters are included to demonstrate that, in spite of political efforts, the Supreme Court has strengthened the general proscriptions announced in ENGEL.
THE BATTLE OVER SCHOOL PRAYER is a fine narrative of the actors and the actions that led to a landmark case. It is to be commended for making the case (and the complexity of the issue) understandable to the layperson. But Dierenfield has gone a bit further here. He has also shown, albeit with less intensity and much less ink, how the case “changed America” – how school districts have changed in the intervening years, how the Protestant domination of the American ethos has waned, and how, in spite of conservative fears, ENGEL did not dry up religious sentiment.
CASE REFERENCES:
ABINGTON v. SCHEMPP, 374 U.S. 203 (1963).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).
ENGEL v. VITALE, 370 U.S. 421 (1962).
EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).
McCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).
MURRAY v. CURLETT, 374 U.S. 203 (1963).
ROE v. WADE, 410 U.S. 113 (1971).
WORCESTER v. GEORGIA, 31 U.S. 515 (1832).
ZORACH v. CLAUSON, 343 U.S. 306 (1952).
© Copyright 2007 by the author, Richard A. Glenn.
