Mozert v. Hawkins County Public Schools (The Tale of the Troubling Textbook) - Part Four

Good Evening, I'm Pierce Lively...

Winter Is ComingIf you’re interested in far more concise case summaries accompanied by pithy-but-97%-sociopolitically-fair-and-balanced insights, check out “Have To” History: Landmark Supreme Court Cases. If you’re specifically interested in the “wall of separation” as applied to public education, well… I’m working on that one. Along the way, however, I’ve indulged myself in the minutiae of a case from Tennessee which took up about half of the 1980s bouncing around the courts. It was called Mozert v. Hawkins Board of Education, and its life ended in the 6th Circuit Court of Appeals in Cincinnati, Ohio, in 1987.

The case centered around the question of whether the district violated the free exercise rights of a small group of fundamentalist parents when they refused to let their children opt out of reading from the same literature textbook as everyone else. The parents found the stories offensive – at least collectively. The textbook’s editors seemed to have intentionally woven a doctrine of tolerance for other cultures and faiths, a belief in imagination and questioning our own assumptions, and getting along with the rest of the world – heresies unacceptable to these devout.

In Part One I covered the origins of the case and the district court’s initial dismissal of the parents’ concerns. Most of their complaints didn’t reach the required threshold for constitutional consideration, and the one which did – that the school was too neutral toward religion and not deferential enough toward theirs – didn’t strike him as radiating with merit.

Part Two covered the Sixth Circuit’s finding that the district court judge was a slacker and needed to give these folks a proper hearing because of all the legitimate constitutional and factual concerns involved, by golly!

This was some of the free exercise being violated...In Part Three, we picked up on some interesting details from the district court’s far more detailed analysis of the situation (after having hearings and everything!) and I went off on a bit of a tear about the conflict between certain schools of conservative thought and that schools should be willing to let a few parents be upset from time to time when it serves the larger good of society and the best interests of their kids.

Come at me, OCPA.

Now it’s time to bring this baby home. At some point, after all, I’m going to need to condense it to about a page and a half if it even survives the process long enough to merit inclusion in the book.

Mozert v. Hawkins (1987) – Sixth Circuit Court of Appeals

The Sixth Circuit originally sent the case back to Judge Hull in the Eastern District of Tennessee for more thorough consideration. When he reversed himself and found in favor of the parents, the district appealed the case back to the Sixth – which promptly overturned Hull’s revised decision.

Stop Judging Me! Oh, Wait...I assume that goes with the gig and that judges don’t take this stuff personally, but I’d have used bad words and probably thrown my gavel through the wall.

Chief Judge Pierce Lively wrote the majority opinion. Also, there’s never been a cooler name in American jurisprudential history than “Pierce Lively.”

He almost immediately included a bit of context not made clear in earlier opinions but which certainly makes some of the school’s stubbornness about everyone using the same book a bit more understandable:

Early in 1983 the Hawkins County, Tennessee Board of Education adopted the Holt, Rinehart and Winston basic reading series… for use in grades 1-8 of the public schools of the county… In grades 5-8, reading is taught as a separate subject at a designated time in each class. However, the schools maintain an integrated curriculum which requires that ideas appearing in the reading programs reoccur in other courses. By statute public schools in Tennessee are required to include “character education” in their curricula. The purpose of this requirement is “to help each student develop positive values and to improve student conduct as students learn to act in harmony with their positive values and learn to become good citizens in their school, community, and society.”

Apparently those teachers who were finding it difficult to maintain two separate curriculums – one for the majority, and one with nothing pushing character or empathy or imagination – weren’t just being lazy slugs after all! The state expected them to weave godless socialism positive values into the entire school day, and regular references to the stories they’d been reading together were part of that.

I don’t know who got the crazy idea that education shouldn’t be a segmented series of unrelated subjects, but that’s Tennessee for you.

Like many school systems, Hawkins County schools teach “critical reading” as opposed to reading exercises that teach only word and sound recognition. “Critical reading” requires the development of higher order cognitive skills that enable students to evaluate the material they read, to contrast the ideas presented, and to understand complex characters that appear in reading material…

Killer Vicky FrostWhoa there, tiger – I thought this was school! No one wants you teaching my kids to think for themselves. That’s why they’ve got me! (OK, that’s not entirely fair. Even the fundamentalists agreed in theory that they wanted their kids to practice critical thinking and such. It’s just that it was supposed to always lead to the same, predetermined outcomes.)

Winter Is Coming

Vicki Frost was the first witness for the plaintiffs and she presented the most complete explanation of the plaintiffs’ position…

I’ll bet she did. Do you sense a touch of euphemizing here?

Mrs. Frost testified that she had spent more than 200 hours reviewing the Holt series and had found numerous passages that offended her religious beliefs. She stated that the offending materials fell into seventeen categories which she listed…

That would win the ribbon for “most complete” alright.

And if you leave out every third 'e'...200 hours is equivalent to five weeks of full-time employment doing nothing but finding things wrong with a middle school literature textbook. I actually have a copy of this reader (I tracked it down when I started reading about this case) and I’m not sure there’s 200 hours worth of analysis IN it. The average adult could read it cover to cover in a day, and none of the stories, plays, or poems are particularly complex.

I wonder if she played some of them backwards to see what it sounded like they were saying that way?

I won’t even address “seventeen categories.” There shouldn’t be seventeen categories of anything. Ever.

These ranged from such familiar concerns of fundamentalist Christians as evolution and “secular humanism” to less familiar themes such as “futuristic supernaturalism,” pacifism, magic and false views of death.

“Less familiar themes”? *snort* Well-played by the aptly named Judge Pierce Lively! One can’t help but picture the other parents trying to look stoic and supportive as she explains this to the court. Then again, to be fair, even today students are being unfairly corrupted by things like futuristic supernaturalism or immunization against polio.

Although the opinion goes on for quite a few more pages, you can pretty much tell the court’s ultimate decision simply by the examples it cites and the way in which it cites them. For example:

In her lengthy testimony—

Hey, now – she spent 200 hours filing these horrors into 17 categories. Let’s cut her a little slack, shall we?

Dangerous One World ToleranceIn her lengthy testimony Mrs. Frost identified passages from stories and poems used in the Holt series that fell into each category. Illustrative is her first category, futuristic supernaturalism, which she defined as teaching “Man As God.” Passages that she found offensive described Leonardo da Vinci as the human with a creative mind that “came closest to the divine touch.” Similarly, she felt that a passage entitled “Seeing Beneath the Surface” related to an occult theme, by describing the use of imagination as a vehicle for seeing things not discernible through our physical eyes.

Yeah, even if the court chose to save the actual decision for the end, by this stage the lawyers and most of the parents had to have known it was over. One can only assume Mrs. Frost at this point started compiling the things wrong with this verdict into some other prime number of categories…


She interpreted a poem, “Look at Anything,” as presenting the idea that by using imagination a child can become part of anything and thus understand it better. Mrs. Frost testified that it is an “occult practice” for children to use imagination beyond the limitation of scriptural authority.

Don't read the inside of the box!Here’s where I confess I’m a bit confused. Not at Mrs. Frost – there are always a handful like her out there fighting principalities and powers and spiritual wickedness in children’s poems – but at the other parents and the legal team. There’s a case to be made that the textbook has a New Age-y, “One World” slant to it. But no reasonable adult can think they’re going to convince a federal judge that fostering imagination in children is essentially promoting the occult.

Be the staunchly religious and you might have a chance (just ask the Amish). Be the crazy fringe group and probably not.

She testified that the story that alerted her to the problem with the reading series fell into the category of futuristic supernaturalism. Entitled “A Visit to Mars,” the story portrays thought transfer and telepathy in such a way that “it could be considered a scientific concept,” according to this witness. This theme appears in the testimony of several witnesses, i.e., the materials objected to “could” be interpreted in a manner repugnant to their religious beliefs.

Ouch. There’s a second nail in the coffin. The material “could be” interpreted in such and such way. That hovers dangerously close to those arguments you have right before the divorce. “Yeah, but it’s HOW you said it, @#$*%&!”

She admitted that the textbooks contained a disclaimer that evolution is a theory, not a proven scientific fact. Nevertheless, she felt that references to evolution were so pervasive and presented in such a factual manner as to render the disclaimer meaningless.

That’s what – nail three or so?

The Magic Flout

Another witness for the plaintiffs was Bob Mozert, father of a middle school and an elementary school student in the Hawkins County system. His testimony echoed that of Vicki Frost in large part, though his answers to questions tended to be much less expansive. He also found objectionable passages in the readers that dealt with magic, role reversal or role elimination…

“Much less expansive” - *snort* - Pierce, you cad!

This is the guy whose name is on the case. Surely his objections will prove a bit more palatable.

…particularly biographical material about women who have been recognized for achievements outside their homes…

Mozert Man Hand (The Regrettes)Or not.

Then again, he didn’t go after Anne Frank as a corrupting influence, so he’s still gonna have to settle for the silver.

Let’s cut to the decision stuff:

The first question to be decided is whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds constitutes a burden on the free exercise of that person’s religion as forbidden by the First Amendment…

The complaint mentioned only the textbooks that the students were required to read. It did not seek relief from any method of teaching the material… The plaintiffs did not produce a single student or teacher to testify that any student was ever required to affirm his or her belief or disbelief in any idea or practice mentioned in the various stories and passages contained in the Holt series. However, the plaintiffs appeared to assume that materials clearly presented as poetry, fiction and even “make-believe” in the Holt series were presented as facts which the students were required to believe. Nothing in the record supports this assumption.

That’s nail four.

Vicki Frost testified that an occasional reference to role reversal, pacifism, rebellion against parents, one-world government and other objectionable concepts would be acceptable, but she felt it was the repeated references to such subjects that created the burden. The district court suggested that it was a matter of balance, apparently believing that a reading series that presented ideas with which the plaintiffs agree in juxtaposition to those with which they disagree would pass constitutional muster…

However, the plaintiffs’ own testimony casts serious doubt on their claim that a more balanced presentation would satisfy their religious views. Mrs. Frost testified that it would be acceptable for the schools to teach her children about other philosophies and religions, but… then her children “would have to be instructed to {the} error {of the other philosophy}.” It is clear that to the plaintiffs there is but one acceptable view--the Biblical view, as they interpret the Bible…

Elmo Wonders What's Up With That Frost ChickHave you noticed that while the arguments made other parents or their lawyers are periodically referenced by way of context and summarizing the issues, every explanation as to why there’s no way they’re going to win this case starts with “Vicki First testified that…”?

Clearly she left a strong impression.

Mrs. Frost testified that many political issues have theological roots and that there would be “no way” certain themes could be presented without violating her religious beliefs. She identified such themes as evolution, false supernaturalism, feminism, telepathy and magic as matters that could not be presented in any way without offending her beliefs. The only way to avoid conflict with the plaintiffs’ beliefs in these sensitive areas would be to eliminate all references to the subjects so identified. However, the Supreme Court has clearly held that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion. (Epperson v. Arkansas, 1968).

Three Cases, Three Strikes

Let’s skip ahead a bit. At this point, ol’ Pierce Lively truly hits his stride. Other than some strategic editing to tighten things up, I’ll shut up and let him bring it all home.

{T}he plaintiffs… have relied particularly upon three Supreme Court decisions. We find them all distinguishable.

The issue in Torcaso v. Watkins (1961), was whether a state could deny public office to a person solely because of the person’s refusal to declare a belief in God… Since there was no evidence that the plaintiff students were ever required to profess or deny a religious belief the issue in Torcaso simply is not presented by the instant case.

Board of Education v. Barnette (1943), grew out of a school board rule that required all schools to make a salute to the flag and a pledge of allegiance a regular part of their daily program… The plaintiff was a Jehovah’s Witness who considered the flag an “image” which the Bible forbids worshiping in any way. Justice Jackson, writing for the Court, stated:

Here, ... we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means… It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and attitude of mind.

It is abundantly clear that the exposure to materials in the Holt series did not compel the plaintiffs to “declare a belief,” “communicate by word and sign {their} acceptance” of the ideas presented, or make an “affirmation of a belief and an attitude of mind.” …

The third Supreme Court decision relied upon by the plaintiffs is the only one that might be read to support the proposition that requiring mere exposure to materials that offend one’s religious beliefs creates an unconstitutional burden on the free exercise of religion. {In} Wisconsin v. Yoder (1972)… {t}he plaintiff parents… were Old Order Amish and members of the Conservative Amish Mennonite Church, who objected to their children being required to attend either public or private schools beyond the eighth grade… Unlike the plaintiffs in the present case, the parents in Yoder did not want their children to attend any high school or be exposed to any part of a high school curriculum. The Old Order Amish and the Conservative Amish Mennonites separate themselves from the world and avoid assimilation into society, and attempt to shield their children from all worldly influences…

The parents in Yoder were required to send their children to some school that prepared them for life in the outside world, or face official sanctions. The parents in the present case want their children to acquire all the skills required to live in modern society. They also want to have them excused from exposure to some ideas they find offensive. Tennessee offers two options to accommodate this latter desire. The plaintiff parents can either send their children to church schools or private schools, as many of them have done, or teach them at home…

The lesson is clear: governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise. An actual burden on the profession or exercise of religion is required.

In short, distinctions must be drawn between those governmental actions that actually interfere with the exercise of religion, and those that merely require or result in exposure to attitudes and outlooks at odds with perspectives prompted by religion…

Holy Rollers I lied, I will add one more comment. The court moves from why the three cases cited by the parents don’t apply to addressing the more general issue at the heart of this case – the role of public schools in serving society as a whole, not just select parts of it. Pierce Lively was as succinct and stirring as anyone on the highest bench had ever managed:

The Supreme Court has recently affirmed that public schools serve the purpose of teaching fundamental values “essential to a democratic society.” These values “include tolerance of divergent political and religious views” while taking into account “consideration of the sensibilities of others.” (Bethel School Dist. No. 403 v. Fraser, 1986). The Court has noted with apparent approval the view of some educators who see public schools as an “assimilative force” that brings together “diverse and conflicting elements” in our society “on a broad but common ground” (Ambach v. Norwick, 1979, citing works of J. Dewey, N. Edwards and H. Richey)…

Mrs. Frost stated specifically that she objected to stories that develop “a religious tolerance that all religions are merely different roads to God.” Stating that the plaintiffs reject this concept, presented as a recipe for an ideal world citizen, Mrs. Frost said, “We cannot be tolerant in that we accept other religious views on an equal basis with ours.” While probably not an uncommon view of true believers in any religion, this statement graphically illustrates what is lacking in the plaintiffs’ case.

How ironic would it be if I shouted “Amen!” at this point?

The “tolerance of divergent ... religious views” referred to by the Supreme Court is a civil tolerance, not a religious one. It does not require a person to accept any other religion as the equal of the one to which that person adheres. It merely requires a recognition that in a pluralistic society we must “live and let live.” If the Hawkins County schools had required the plaintiff students either to believe or say they believe that “all religions are merely different roads to God,” this would be a different case. No instrument of government can, consistent with the Free Exercise Clause, require such a belief or affirmation. However, there was absolutely no showing that the defendant school board sought to do this; indeed, the school board agreed at oral argument that it could not constitutionally do so.

Looking Over The WallPrint this up and distribute it to every school board, judge, right wing talking head, or believer with a persecution complex. Think of how many problems we could solve if we had general understanding and agreement of this bit alone.

Instead, the record in this case discloses an effort by the school board to offer a reading curriculum designed to acquaint students with a multitude of ideas and concepts, though not in proportions the plaintiffs would like. While many of the passages deal with ethical issues, on the surface at least, they appear to us to contain no religious or anti-religious messages. Because the plaintiffs perceive every teaching that goes beyond the “three Rs” as inculcating religious ideas, they admit that any value-laden reading curriculum that did not affirm the truth of their beliefs would offend their religious convictions.

Now things are getting jurisprudential and intense. Better yet, we’re done with the bizarro world of Vicki Frost and her 17 categories.

Although it is not clear that the plaintiffs object to all critical reading, Mrs. Frost did testify that she did not want her children to make critical judgments and exercise choices in areas where the Bible provides the answer…

Or maybe we’re not. It doesn’t matter. Let’s focus on that part about “it’s a civic tolerance, not a religious one.” That’s the hit single we turn up and sing along with in the shower.

The case produced a concurring opinion as well as a dissent – which is a lot of variation when you consider that there were only three judges involved. Both are interesting in their own way, but I think I’ve done enough damage on this one for now.

It’s time to get back to the serious stuff, like why Bridget Mergens should be allowed to have a Bible Club after school. Besides, the religious folks were honestly due for a win, and in Mergens Battles The Big Bad Godless Public School System, they get one.

Where The Occultic Beasts Are

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