Reflections on Schempp vs. Abington School District -- An Interview with Ted Mann

A new book by NYU professor Stephen D. Solomon, titled "ELLERY'S PROTEST - How One Young Man Defied Tradition and Sparked the Battle over School Prayer," served as the springboard for JSPAN President Jeff Pasek to interview Board Member Ted Mann about his role in Schempp v. School District of Abington Township, the Supreme Court case that outlawed Bible reading in public schools.

Given your central role in the most pivotal church-state case in American history, I was hoping you might answer a few questions. The Schempp case was initiated by the ACLU. How did the ACLU reach a decision to challenge Bible reading in the schools? Ted: Sixteen year old Ellery Schempp wrote a letter to the ACLU's Philadelphia office complaining about the practice. Based on research by Bernard Wolfman (then a lawyer with Wolf Block, later Dean of Penn Law School, and still later a Harvard Law School Professor) who had concluded it was a very close call but that the case might be won, ACLU's Freedom of Expression Committee overwhelmingly decided that the case should be brought. ACLU's Board, on a 10-9 split vote, agreed.

What was your first involvement in the Schempp case? Ted: ACLU first asked Wolfman to represent Ellery, but he (Wolfman) felt that the fact he was Jewish might be a diversion from the major constitutional issues involved. ACLU then referred Ellery to me and I devoted the next three weeks to researching the issues and drafting a Complaint. This was fifty years ago, the summer of 1957. I had been in practice for only three or four years, so I sent the draft to the two men whose opinions I most respected regarding issues involving church/state separation, Leo Pfeffer and Shad Polier, for review and comment.

Leo Pfeffer and Shad Polier of the American Jewish Congress were the two leading Jewish lawyers on First Amendment issues at the time. What did they think of this challenge? Ted: Shad telephoned me from New York. I will never forget his very first words: "Who's the shmuck who drafted this Complaint?" and I said "You're talking to him." Nothing was wrong with the Complaint. In fact it was later filed by Henry Sawyer without a single change and withstood all challenges. But Shad and Leo were sure that a suit involving "only" Bible reading and the Lord's Prayer would be lost. They were looking for a case that also involved the whole panoply of Protestant religious practices in America's public schools - Christmas trees, creches, Christmas carols, etc - while I felt that Bible readings and the Lord's Prayer were the only practices that were indisputably "religious", not "cultural" or "historical", and that including such other practices would weaken, not strengthen, Ellery's case. In fact, Ellery prevailed, 3-0, before the lower court and 8-1 before the United States Supreme Court.

How did the case wind up with Henry Sawyer? Ted: I think it was because in 1957 I had not been admitted to practice before the Pennsylvania Supreme Court for enough years to be admitted to practice before the nation's highest court, but I'm not really sure. Or I may have come to believe that there was merit in Bernie Wolfman's concerns. As I recall, I and Leo Pfeffer too ended up as counsel for the Synagogue Council of America, amicus curiae. Henry Sawyer had just become President of the ACLU, was a superb trial lawyer, and had, during the McCarthy era, demonstrated real courage in litigating extremely unpopular causes.

What was the reaction within the organized Jewish community when word got out that a challenge to Bible reading was going to be litigated? Ted: The Federation funded (to some small degree) the American Jewish Congress, and I would appear before its allocations committee annually to ask for an increased allocation. I remember how Zeke Pearlman, staffing the committee, would tell the committee that AJ Congress, among other things, worked to improve relations between Jews and Protestants and then would ask me whether suing to remove the Protestant bible from the public schools was a good way to do that. (Years later, when we would sue to stop the state from financing parochial schools, he would ask the same questions in regard to Jewish-Catholic relations). But in fact the level of Protestant and Catholic anti-Semitism sharply decreased in the 50's, 60's and 70's according to annual polls Jewish organizations conducted.

One of the key factors in the case was the testimony of Solomon Grayzel, once a professor at Gratz College and at the time the editor of the Jewish Publication Society. How did he get involved? Ted: Solomon Grayzel was also the Rabbi for the overflow Rosh Hashana and Yom Kippur Services at Beth Zion Synagogue in the mid-fifties, and one year I was the Hazzan. I remember meeting him for the first time early on the morning of the first day, when we were one man short of a minyan, and after confirming that Ronnie's last name was Mann, he said "let's start." From then on, he was my Rabbi. I recommended him to Henry Sawyer as a real expert on the differences between the King James Bible and our Holy Scriptures, on the derogatory references to Jews in the King James Bible, on Jewish history following adoption of Christianity by the Roman Empire, and on the impact on Jewish students of the practice of Bible reading and the Lord's Prayer five days a week over twelve successive years. He was a great witness.

We know that church-state cases have the potential to bring out the basest forms of bigotry. Were you or the others involved in the case subjected to any retaliation as a result of the case? Ted: Ronnie and I moved into our home in Overbrook Hills in March 1958 and on the newly paved sidewalk someone had carved into the wet cement a swastika and the words "I love Hitler." But the far more important immediate impact that began after the Supreme Court decision in 1963 included repeated attempts to amend the Constitution to permit prayer in schools or to pass legislation depriving federal courts of jurisdiction to hear cases objecting to prayer in the public schools, etc. This went on for many, many years and likely will never stop, given the way attempts to impose particular religious beliefs on the entire society seem to rise and fall regularly every fifteen or twenty years.

Ted, you have been involved in leading church-state cases for 50 years now, including playing a key role for JSPAN in four friend of the court briefs in the last two years. Are there any lessons from the Schempp case that we ought to keep in mind for the future? Ted: We American Jews are the freest diaspora Jewish community in the history of the world. The single most important reason for that remarkable fact is the wall of separation between church and state, a concept developed by our founding fathers, especially Madison and Jefferson (and our founding great great grandfather Roger Williams a century and a half earlier) as imbedded in the First Amendment and carried forward to this day by our Supreme Court, especially since 1947. I think most American Jews know that. And because it is the President who nominates Supreme Court justices, American Jewish voting behavior in national elections is deeply affected by that knowledge. That must continue.