Court axes prayer at Little Axe
It's early December, 1982. I'm watching American justice operate as junior high school kids take the witness stand in Oklahoma City's U. S. District Court to testify regarding the Son Shine Club, a weekly prayer, singing, and testimony service organized almost a year earlier by students in the rural Little Axe, Oklahoma, school system.
When students brought the idea of a time for Bible study and prayer to Rebecca Ernest, a sixth-grade teacher, she approved and so did school board officials. The sessions, open to students beginning in the third grade, were to be voluntary and strictly nonsectarian. Four months later, two mothers, Joann Bell and Lucille McCord, filed suit against the Little Axe school board to halt the religious programs conducted in Mrs. Blackwell's home ec room. The American Civil Liberties Union came to their legal aid. Beyond these basic facts, the two sides find little to agree on.
Little Axe, a small community east of Norman, Oklahoma, is an unlikely scene for a major constitutional battle over the First Amendment's religious establishment clause. Hardly large enough to qualify as a town, it has a small church, a convenience store, an American Legion hall, and the nine-grade public school. Homes are spaced widely apart on narrow, bumpy country roads. The people are typically churchgoing and industrious. They would also probably characterize themselves as friendly.
But despite appearances, all is not well in Little Axe. For several years longtime residents and urban escapees from Oklahoma City (a forty-minute commute up the highway) have been trying to tug the community in different directions. Not only do the commuters tend to be more liberal than their longer-established neighbors, but their sheer numbers are changing the community. Fourteen years ago the school had four teachers and eighty students. Today there are 51 teachers and 750 students. These underlying tensions become evident in the school controversy.
My feelings are ambivalent this December afternoon as I sit in the visitors' gallery of the courtroom. A Christian and a minister of the gospel, I find it strange to see youngsters having to defend in court such things as prayer and Bible study. Murderers, rapists, armed robbers, and kidnappers have been tried from the same bench! Like some others in the courtroom, I wonder what all the fuss is about. A reporter is overheard during a recess delivering his opinion that the trial is "irrelevant and a waste of time." The People's Court (a televised small-claims court) could, he feels, wrap up the case in its usual thirty minutes. Other spectators seem bewildered or amused.
But as I talk with Shirley Barry, executive director of the ACLU of Oklahoma, I discover the case isn't as simple as I might have first supposed. The ACLU often supports causes that anger many Christians: the removal of Nativity scenes and other Christian symbols from public buildings; prohibitions against teaching creationism in public schools; even ending a minute of silent meditation as practiced in New Jersey schools. Why is her organization involved in the Little Axe trial, I ask? For an answer she quotes the comments of a judge in a similar case: "It is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent; and in the words of Madison: 'It is proper to take alarm at the first experiment on our liberties.'" She feels the issue in this case is the wall of separation between church and state, and the ACLU is determined that there be no holes in that wall even in this "Bible Belt" bastion.
Other dimensions to the case emerge as I talk to individuals and listen to testimony. According to Barry, the real force behind the school prayer sessions was not the students, but a local pastor who used them to proselytize young people for his church.
I strike up a conversation with a Little Axe resident in the visitors' gallery. He tells me that several teachers became quite involved in the Thursday morning programs. They attended with the students and helped them make banners and posters publicizing the weekly meeting. "I'd feel differently about these meetings if only students were allowed," he declares. "But the presence of the teachers gives credence to what goes on. They're authority figures, and their endorsement helps coerce the kids into going."
Nearly all the students in Little Axe come to school on the bus, arriving some thirty minutes before classes begin. But only students who participate in the prayer-and-sharing sessions are allowed to enter the school building before 8:30 A.M.—a fact not lost on students (or parents) on cold Oklahoma mornings.
Some prayer club members persist in trying to persuade friends and acquaintances to attend the Thursday meetings. Robbie McCord, whose mother later joined forces with Joann Bell in filing the Federal lawsuit seeking an end to the prayer sessions, is called a devil worshiper because he will not attend the meetings, and a cross is hung upside down on his locker. Non-attenders brand those who do as "teacher's pets."
Trying to take prayer and the Bible out of the public school is not a popular endeavor, especially in the heart of the Bible Belt. The decision to go to court to stop the religious school programs made Lucille McCord and Joann Bell about as welcome in Little Axe as a return of the dust bowl. Both attended local churches and believed in giving their children religious training. The school, however, was not the place for that to happen, they felt. "I believe that we have a freedom of religion and a freedom from religion," Mrs. McCord testifies at the trial. "My main complaint is that the church has no place in school, and that the school has no place in the church."
Little Axe, by and large, does not agree. Says Lucille McCord: "After the lawsuit was filed, things began to happen to my children and myself. My son was left out of the sports banquet. This was his sixth year of perfect attendance in school, but he was not given his award. I received between one hundred and two hundred threatening or insulting phone calls. I was called an atheist and a Communist. One phone caller told me, 'If you don't drop the lawsuit, you will get it.' I received my own obituary column in the mail. Finally our family moved to another community because we feared for our personal safety." Contending that her children have developed health problems and psychological damage because of their ordeal, Mrs. McCord seeks actual damages in the trial to pay for her children's psychiatric help.
Joann Bell's story is similar. On May 14, 1981, soon after the lawsuit was filed (and the last time the Son Shine Club met during that school year), a bomb threat was phoned in to the school. With other concerned parents, Joann Bell hurried to the school to check on her children. A cafeteria worker came out to her car, accused her of phoning in the bomb threat, and then began to smash her head repeatedly against the car's door frame. (Mrs. Bell later won a judgment against her attacker.)
A school board member, in a newspaper interview, said of those suing the school board: "If people play with fire, they will get burned." The Bells' trailer burned to the ground on September 18, 1981, while the family was attending a football game. After the fire Mrs. Bell received a sympathy card in the mail on which was written: "Ha! ha!" Although several people in the community offered assistance, she no longer trusted anyone. (In January, 1983, the State fire marshal's office declared that the Bells' fire had been intentionally set. The guilty party or parties have still not been apprehended.)
When the trial actually convenes, eighteen months after the filing of the suit, it is evident to me that the anger and distrust on both sides still exist. The pretrial charges, answers, motions, countermotions, depositions, orders, affidavits and other documents have run to more than eight hundred pages and created a nine-pound file in the clerk's office!
I watch as Judge Ralph G. Thompson's Federal courtroom in Oklahoma City becomes the battleground between two First Amendment clauses of the U.S. Constitution: the clause prohibiting the establishment of religion and the clause affirming the right to free speech. Michael Salem, ACLU lawyer and counsel for the plaintiffs, argues: "The State should not act to undermine parental authority, to control and direct children's religious heritage and activities. . . . The public grade school is not a public forum where religious views may be freely aired." The defense attorney, William Graves (who as a State legislator authored Oklahoma's 1980 "Voluntary Prayer Law," which authorized prayer in State school districts), focuses on the issue of free speech. "Prayer," he insists, "is a form of religious speech protected by the Oklahoma and the United States constitutions."
Both attorneys got less from the judge in the way of concessions than they hoped. Graves had asked the judge in pretrial briefs to overturn past Supreme Court rulings concerning prayer in public schools. Thompson, however, made it clear that he had no intention of creating a new law. "Whether prayer should be allowed in public schools is not the question before this court," he ruled. "The issue is whether the activities at Little Axe School are permitted or are not permitted. It is not the function of this court either to determine what the law should be or to attempt to overrule the decisions of the Supreme Court."
Salem, on the other hand, hoped to overturn the State's voluntary prayer law and have it, along with the Little Axe prayer sessions, declared unconstitutional. Ultimately, the 1980 Voluntary Prayer Law was left untouched by the judge's decision.
According to trial testimony, the Little Axe school policy is quite broad regarding use of school facilities by nonschool-sponsored activities. Provided such activities are voluntary and not officially sponsored by teachers (although they should be present to supervise), the policy prohibits only meetings that are "immoral, violent (or advocate violence), or interfere with the educational process." Superintendent Paul Pettigrew testifies that school officials, under the policy, would have to include extremist groups that are nondisruptive. (According to my local resident acquaintance in the visitors' gallery, such a position is not merely theoretical. "During the Iranian hostage crisis," he tells me, "an Iranian came to the ninth-grade class to defend the position of the Khomeini government. You can just imagine the trouble that stirred up!")
Attorneys for the plaintiffs and the defense begin sparring, through their witnesses, over several key issues. John Rushdoony, executive director of the Chalcedon Foundation, author of numerous books, and a witness for the school board, defends the students' right to meet in a voluntary, school-club setting for religious purposes. "The ability to meet with peers to express religious faith is important psychologically to the students," he argues. "Meetings such as the Little Axe sessions provide Christian role models to the students. ... To deny a handful of students the right to develop a system of Christian values and role models would be a travesty of freedom."
The other perspective is given when the son of an Assembly of God minister and father of a Little Axe student takes the stand for the plaintiffs. "When it comes to religious upbringing, I feel it's my role, and mine alone, to determine my children's religious education." Although he had kept his son from attending the Son Shine Club, he felt its presence in the school was taking that right from him.
Would it make any difference to those supporting the Son Shine Club, wonders attorney Salem aloud, if a non-Christian religious cult should form a similar organization at the Little Axe School? If Bible Belt Christianity is being allowed to function within the school, can the Hare Krishnas be far behind? Asked what he would do if a non-Christian cult were permitted to promote its beliefs to his daughter in her school, one witness replies, "I would probably do what the plaintiffs are doing here today."
But the Son Shine Club was voluntary. No one had to attend. Thomas Berndt, a University of Oklahoma psychology professor, is not so sure when he testifies on the second day of the trial. His research on peer pressure among children causes him to believe that "religious meetings sanctioned by school officials tend to take on the appearance of endorsement by authorities." In his opinion, Berndt testifies, a fifth-or sixth-grade student, given the choice of attending a religious meeting at school or not attending, could not make that choice free from undue influence. "A clear state of uncertainty and probably discomfort would exist in the child's mind if his parents told him not to take part in worship services permitted by the school."
Dr. Vernon Enlow, a clinical psychologist, agrees. "Prayer meetings at public schools tend to polarize children into factions—those who go and those who don't. They automatically create a 'right and wrong situation' because the children have to choose whether or not to attend."
Yet Dr. Paul Schmidt, another clinical psychologist, differs with his col leagues. In his view, religious sessions such as those held at Little Axe "contribute to the educational atmosphere." In fact, banning such meetings would lead to a "combative, charged atmosphere . . . not conducive to learning. . . . God would be seen as an impotent, irrelevant figure. He doesn't have the power to come to school."
So goes the debate between expert witnesses with no clear winner in sight. Nor is a clear winner apparent when the trial comes to a close Thursday afternoon, December 9. Both sides are predicting victory; both are confident that their concept of religious freedom and civil liberties will prevail. Judge Thompson gives the two attorneys thirty days to submit final briefs, promising to hand down a decision after that time. In his closing remarks, he states: "I'm well aware of the strength with which these conflicting views are held . . . I'm well aware of the effect it's had on this small community. I am equally concerned that these important issues be given thoughtful, searching consideration before a judgment is made."
Not until March 11, 1983, does Judge Thompson rule on the case. Apparently "thoughtful, searching consideration" takes longer than he expected. His decision? The Son Shine Club at Little Axe School is unconstitutional in its present form. A twenty-seven-page memorandum opinion accompanies his permanent injunction order. In this he calls the prayer sessions "wholesome, beneficial, and positive," but unconstitutional. The Thursday morning meetings could be legally held on school property, he declares, if they are held after the school day has ended—under Oklahoma law the school day is considered to end when the students have boarded buses and left the school. His opinion includes the finding that the Oklahoma Voluntary Prayer Law of 1980 is within the bounds of the U.S. Constitution.
Both sides in the Little Axe case go away feeling they have won at least a partial victory. Yet both sides have since appealed the decision. The ACLU is still seeking to overturn the Voluntary Prayer Law and have the school's policy regarding religious meetings declared illegal. The school board is appealing in order to escape the considerable legal fees it is obligated to pay if the decision stands.
Summing up his opinion, Judge Thompson writes: "That this form of separation of church and state is presently a matter of political debate is acknowledged. But unless and until the Constitution of the United States is amended, or the Supreme Court reverses its long line of controlling decisions on these issues, this ruling is inescapable and follows, as this court is sworn to do, the present law of the land."
One further development in the Little Axe case: On June 16, 1983, Joann Bell received the Elliott-Black International Ethical Award from the American Ethical Union at the organization's national assembly in Andover, New Jersey. The award was given "in recognition of her firm stand supporting separation of church and state, despite extreme persecution she suffered as a result of her position."
Another new school year is now under way at the Little Axe School. The school and the quiet little community surrounding it has returned to its usual routine. In the school, mathematics, social studies, science, and English grammar are taught with competence. But spoken prayer, testimony, and religious singing are no longer heard in Mrs. Blackwell's home ec room.
Whether that is a good or a bad thing is the issue still to be decided.
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