Honorable J. W. Edgar.

Commissioner of Education OpinionNo.'WW-1445
Texas EducationAgency Re,: Implicationof the recent Austi!I ,Texas United States Supreme : Court-Is

decision regarding prayer in the public schools .,'of New York, and related Dear Mr. Edgar: questions. .',

You have requestedan opinions from'this office upon certain questions relating to the implication of the recent United States,Supreme Court case of Eneel-v. Vitale, U.S. 8 L.Ed.2d ,601;82 S.Ct. - xed "School'Prayer Case. (19621, the so- 'I'. Specif,ically

you have pos'ed the questions ofwhether, in view of the'deeis5on~'i.n Engel y.Vitale, ,+p& a~schooldistrqc,tmay lawfully:

"1. Permit a student or teacher to say a blessing at mealtime in,a homeroom group; "2. Provide a.pericd of silentmeditation during mealtime; ~.

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. Have a prayer said at:the football g&es, or other school sponsoredpublic gatherings;

“4. Provide or allow for the'reading of Bible passages in a homework or during school assembly programs."
In connectionwith the questions posed you have stated that there is no uniform policy, directive or practice in.the schools of this~ State concerningprayer or reading of the Bible in connectionwith activities such as set forth in the questionsheretofore posed.

In the case of &se1 v. Vitale,,sunra, the Board of Education of Union Free School DistrictNo. 9, Neil Hyde Park,had, while acting in its official capacity under state law, directed the School District'sprincipal.to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each~schoolday:HonorableJ. W. Edgar, page 2 (WW-144%

"AlmightyGod, we acknowledge.ourdependence upon Thee, and we beg Thy blessingsupon us9 our parents, our teachers and our country." This daily procedurewas adopted on the recommendation of the State Board of Regents. The State Board of Regents is a governmentalagency which had been created by the Constitutionof the State of New York and such agencyhad been grantedbroad supervisory, execu ive and legislativepow1 ers over the public school system of the State of New York by the Legislatureof the State of,New York. The officials comprising the State Board of Regentshad composed the abovequoted prayerwhich they recommended and publishedas a part of their "Statementon Moral and SpiritualTraining in Schools." In the instant case the prayerwas said upon the commencementof the schoolday and immediatelyfollowing the pledge of allegiance to the flag. The prayerwas saidaloud by either the teacher or one of the students. However,no ,~student

1Ja.S compelled to take part in such prayer,and could even leave the classroom if he so 'desired.

'Afterthe'practice of reciting'theRegents'prayer had been adopted by the School District,.theparentsof ten childrenbrought the instant action in a State court of New York, and, in thewordsof Mr. Justice Black in the United States Supreme Court's opinion in.Engelv. Vitale, w:

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. . challenged the constituti;zcni.zof both the state law,authorizine the SC strict to direct the use of nrav r in nubliq schools and the School District:sreaulation ,~orderins

the recitation of this aarticularcraver on the ground that these actions of officialgovernmentalagencies violate that part of~the First Amendment of the Federal Constitutionwhich commands that 'Congressshall make no lalJ respecting an establishment of religion'--a commandwhich was 'madeapplicable to the State of NewYork by the FourteenthAmendment of the said Constitution.'

. . .'I (Emphasisadded). The trial court in New York inwhich this suitwas commenced,denied the relief requeste d by the parents. The New York Court of Appeals sustained the order of the trial courtwhich had upheld the power of New York to use the Regents'prayer as a part of the daily procedure of its public schools so long~as the schoolsdid not compelany pupil to join in the prayer overhis or his parents' objection. The United States Supreme Court granted certiorariand in its decision in En.ael

v. Vitale, sunra, reversedand remanded theHonorable J. W. Edgar, page 3 (W-1445)

decision of the New York courts.

The implications-ofEnnel v. Vitale, sunra, upon the questions posed in the instant opinion request are best revealed by excerpts of pertinent portions of themajority opinion of the Unived States Supreme Court in Engel v. Vitale, m, and which are set forth as follows:

"We think that by using its public school system to encouraae recitation of the Resents' prayer; the State of New York has adopted a nractice,whollvinconsistentwith the Establishment Clause. :
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. . "The petitioners contend among other things that the state laws requiring or permittinguse of the Regents' prayer~must-bestruck do%Jn as a violation of the Establishment Clausebecause that nraverwas comoosed bv sovernmantal official8 as a cart of a'sov rnmental reliaiousbeliefg.e nroaram to furtha For this reason, petitioners argue, the State's use of the Regents' prayer in the public school system~breachesthe constitutionalIJallof separationbet7rleen Church and St&t&. .Weagree with that contention sincewe'think that the constitutional prohibitionagainstlaws respecting an establishment of.religionmust at least mean that in this country~it is no Dart of the business of .aovernment to comnose official pravers for any sroun of the American oeonle to recite as a Dart of a relinious nroaram carried gn bv sovernment. II

. . . II

. . . One of the greatest dangers to the freedon of the.individual toworship in his own way lay in the Government's.placingits official stamp of approval upon one particular form of prayer or one particular form of religious services.

. . The First Amendment was added.to the Constitution to stand as a .guaranteethat neither the power nor the prestige of then Federal Government would be used to~control, support or influence the kinds of nraver that American people can say--. . 0Honorable J. W. Edgar, page 4: (ww-1445)

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. . . government in this country,be it state or federal, is without Dower to nrescribe bv law anv narticular form of Waver which is to be used as an official nraver in carrying on any program of governmentally sponsored religious activity.
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. each separate government in this country should stav out of the business of writins or sanctioningofficial nraversand leave that purely religious function to the people themselvesand to those the to for religious guidance."l people choose to look (Emphasisadded). The majority opinion of the United States Supreme Court in Enaelv. Vitale,m, was adoPted upon the vote of five of the :,Justices.Justice Stewart dissented. Justice fiankfurter'and:

Justice 'Aite took no part in the decision. Justice Douglas'i,corcurred in the result but upon different groundswhich are set forth in his concurring opinion.

Essen+$ally, the concurring Douglas deals.with the question of:

'Whether the Government can finance a religious exercise.tt' opinlon.of Justice
constitutionally

Justice Douglas concurswith the result reachedby the majority opinion;but bases-hisreasoning, that there has been a violation of the First Amendment of the United States Constitution in the instant case, upon the grounds that the activities of the public schools of New York constitute the financing of a religious exerciseby the State of New York.

However, the reasoning set forth in Justice Douglas' concurring opinion can be given little or no more weight than

me./t This last phrasewas footnotedwith the followingscom- :"There is of course nothing in the decision.reachedhere that is inconsistentwith the fact that school children and others are officially encouraged to express love for our country by recitinghistorical docume,ntssuch as the Declaration of Independencewhich contain references to the Diety or by singing officially espousedanthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are manvmanifestations in our nublic life of belief in God. Such patriotic or ceremonial occasions bear no trues resemblance to the unquestionedreligious exercise that t e S t of Uew York has sponsored in'this instance. Sts a%ie3). (Empha-Honorable J. W. Edgar, page 5 (W-1445)

a dissenting opinion for the reason that the five Justices voting for themajority opinion did not see fit to agree with the grounds in such concurring opinionas a basis for the result reached by the Court. Consequently,in applying the decisionhanded.down by the United States Supreme Court in Engel v. Vitale, suvra,we must be guided by the majority opinion rather than the implications of the concurringopinion. Throughout themajority opinion of the Court in Enael v. Vitale, sunra, the Court repeatedlyrefers to lack of authority or power of any governmentalbody or agency to compose, prescribe, support, or influence the type or kind of prayerwhich may be said at any school activity. In turn, the Court condemns any such effort by a goverbmentalbody or agency to compose, prescribe, support .orinfluence thetype or kind of prayer to be said as a violation of the First Amendment to the United States Constitution.

We are of the opinion that the decision of the United States Supreme Court in Enpel v. Vitale; sunra, is one of narrow implication rather than broad and all embracing and we are of the further opinion that the Courtby %~~ecision has merely rejected as unconstitutionalany effort by governmentalbodies or agencies to compose, prescribe, support, or place its approval upon any particularprayer or form of prayerwhich may be said during the course of some private, public, or governmentalactivity or function.

Consequently,we are of the opinion that in regard to the questionsyou have posed none of such activitiesare illegalnor are they in violation of the First Amendment to the United States Constitution as long as there is no action by the State of,Texas or any of its agencies or political subdivisions to compose, prescribe, support or place its appro-- val upon any particular prayer or form of religious activity which may constitutea part of some public school or public school sponsored activity.

: SUMMARY The decision of the United States Supreme Court in the Enael v* Vitale case does notprohibit the DUblic schools of the State of Texas from allowing the saying of prayers or the reading of p~assages

from the Bible during the course of school activities or school-sponsoredactivities aslong as there is no action by theHonorable J. K. Edgar, page 6 (WW-1445)

State of Texas or any of its agencies or political subdivisions to compose, prescribe, support, or place its approval upon any particular prayer or form of religious activity.
Yours very truly,
WILL WILSON Attorney General of Texas

BY
PB:wb Pat Bailey Assistant
APPROVED:
OPINIONCOMMITTEE , W. V. Geppert, Chairman Howard Mays Morgan Nesbitt ScrantonJones Ernest Fortenberry
REVIEWED FOR T@ ATTORNE? GEmRAL
BY:. Leonard Passmore