Lumbard, Chief Judge, and Friendly and Anderson, Circuit Judges.
The decision in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601, condemning the "Regents' prayer" as violating the Establishment Clause of the First Amendment, held to be applicable to the states by the Fourteenth, was rendered on June 25, 1962, too late to affect the 1961-62 school year. The case now before us reflects a response to that decision by parents who think their children ought have some form of religious observance while in public school.
The amended complaint, filed in March, 1963, in the District Court for the Eastern District of New York, made the following allegations: The fifteen plaintiffs, of varying religious faiths, are parents of twenty-one children, ranging from five to eleven years in age. The children attend Public School 184, at Whitestone, N.Y., in grades ranging from kindergarten to the sixth. The defendants are Elihu Oshinsky, principal of the school; the members of the Board of Education of New York City; and the Board of Regents of the University of the State of New York. On October 5, 1962, Mr. Oshinsky "ordered his teachers who were instructing the kindergarten classes to stop the infant children from reciting the simple and ancient prayer:
'God is Great, God is Good and We Thank Him for our Food, Amen!'
before they ate their cookies and milk in the morning session," and "ordered his teachers who were instructing the kindergarten classes for the afternoon session to stop the infant children from reciting the simple and ancient prayer:
'Thank You for the World so Sweet,
Thank You for the Food We Eat,
Thank You for the Birds that Sing --
Thank You, God, for Everything.'"
He also "ordered his teachers to stop the saying of any prayer in any classroom in P.S. 184, Whitestone, New York." The Board of Education and the Board of Regents have instituted a policy banning prayers in the public schools even when the opportunity to pray is sought by the students themselves, and by so doing have "condoned and/or directed" Mr. Oshinsky's actions. The plaintiffs had joined in a written demand to the defendants "that our children be given an opportunity to acknowledge their dependence and love to Almighty God through a prayer each day in their respective classrooms"; defendants had ignored this.
The defendants moved, under F.R.Civ.P. 12(b), to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim on which relief could be granted. Plaintiffs countered with a motion for summary judgment under F.R.Civ.P. 56, supported by an affidavit which added no allegations to those in the complaint and asserted that "the issues presented are purely Constitutional in nature and questions of law. No issues of fact are presented." Defendants filed no affidavits contradicting anything said in the complaint; they urged rather that the motion for summary judgment was premature and that their own motion did not admit the allegations of the complaint save for the purpose of raising the objections there stated. The court denied defendants' motion and granted plaintiffs', 224 F. Supp. 757 (1963). It signed an order prohibiting interference with prayer and requiring that a reasonable opportunity for it be provided each day, but stayed the order pending this appeal.
We see no force in defendants' argument that the posture of the case did not permit the grant of summary judgment to plaintiffs, whatever the merits of their claim and the adequacy of the showing in its support. Although F.R.Civ.P. 56(a) in its initial form would have postponed such a motion until answer had been filed, one of the purposes of the 1946 amendment was to permit a plaintiff to move for summary judgment while a pre-answer rule 12(b) motion was pending. 6 Moore, Federal Practice para. 56.07 (2d ed. 1953). We likewise cannot sustain defendants' contention that the complaint did not sufficiently raise a claim of denial of constitutional rights to the free exercise of religion and to freedom of speech "to warrant exercise of federal jurisdiction for purposes of adjudicating it" under 28 U.S.C. § 1343 (3). Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946). But we think the court erred in its ruling on the merits.
Plaintiffs say that Engel v. Vitale, supra, and the later decisions in Abington Tp. School District v. Schempp and Murray v. Curlett, both at 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), held only that under the Establishment Clause of the First Amendment a state may not direct the use of public school teachers and facilities for the recitation of a prayer, whether composed by a state official as in Engel or not so composed but having a religious content as in Abington and Curlett; they argue that these decisions did not hold that a state could not permit students in public schools to engage in oral prayer on their own initiative. This may be true enough; if the defendants could prevail only by showing that permitting the prayers was prohibited by the Establishment Clause, the question would be whether the use of public property as a situs for the prayers, the consumption of some teacher time in preserving order for their duration, and the possible implication of state approval therefrom would attract the condemnation of People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), or the benediction of Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952), and Sherbert v. Verner, 374 U.S. 398, 409, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). Although we note in this connection defendants' serious contention that in the context of closely organized schooling of young children, "studentinitiated" prayers are an illusion and any effective ...