Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Three

November 14, 2020June 4, 2023 ~ Blue Cereal

I’m discovering as I continue to draft a follow-up to “Have To” History: Landmark Supreme Court Cases that it’s more and more difficult to keep things succinct as subject matter nears the 21st century. I’m sharing a few rough drafts along the way partly in hopes a few of you, my Eleven Faithful Followers, might find them interesting, and partly because nothing highlights the problems in a text like posting it live for all the world to see.

Some version of this Talmudic Tale will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct.

Recap of Parts One & Two: Kiryas Joel was (and is) a community of particularly insular Hasidic Jews (the Satmars) in New York. Most of their children attended private religious schools, but they asked the state for assistance providing care and education for their special needs children. Initial efforts to serve these particular children rand into conflict with recent Supreme Court rulings which struck down several public school efforts to serve high needs kids in religious institutions. New York responded by allowing the Satmars to create their own neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries. The Supreme Court struck down this arrangement in a 6 – 3 decision, but even majority justices had differing ideas as to the specifics. The arrangement violated the Establishment Clause. Beyond that…

Justice O’Connor’s Concurrence (and Advice Column)

Justice O’Connor (concurring in part and concurring in the judgment), took the same “you know what you should have done?” approach as she had in Wallace v. Jaffree (1985):

The question at the heart of this case is: what may the government do, consistently with the Establishment Clause, to accommodate people’s religious beliefs? The history of the Satmars in Orange County is especially instructive on this, because they have been involved in at least three accommodation problems, of which this case is only the most recent…

O’Connor walked readers through these accommodations, lamenting the Court’s decisions in Grand Rapids and Aguilar along the way. It wasn’t a purely historical journey; she was leading up to something.

There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation. New York may, for instance, allow all villages to operate their own school districts. If it does not want to act so broadly, it may set forth neutral criteria that a village must meet to have a school district of its own; these criteria can then be applied by a state agency, and the decision would then be reviewable by the judiciary.
A district created under a generally applicable scheme would be acceptable even though it coincides with a village which was consciously created by its voters as an enclave for their religious group. I do not think the Court’s opinion holds the contrary.

Want to guess how Kiryas Joel schools operate today? (Come on, take a guess!) It took a few versions before one eeked through federal court approval, but New York eventually figured out how to write a law that only applied to Kiryas Joel without mentioning anything in it that made it clear it could only apply to Kiryas Joel. Thanks, nice judge lady!

I also think there is one other accommodation that would be entirely permissible: the 1984 scheme, which was discontinued because of our decision in Aguilar. The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion. All handicapped children are entitled by law to government-funded special education…
If the government provides this education on-site at public schools and at nonsectarian private schools, it is only fair that it provide it on-site at sectarian schools as well.

One almost gets the impression Aguilar was ripe for the overturnin’ – say, maybe… three years later?

Finally, O’Connor takes a detour down “Lemon Sucks” Lane:

One aspect of the Court’s opinion in this case is worth noting: Like the opinions in two recent cases, Lee v. Weisman (1992), Zobrest v. Catalina Foothills School Dist. (1993), and the case I think is most relevant to this one, Larson v. Valente (1982), the Court’s opinion does not focus on the Establishment Clause test we set forth in Lemon v. Kurtzman (1971).
It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular clause. There is, after all, only one Establishment Clause, one Free Speech Clause, one Fourth Amendment, one Equal Protection Clause…
But the same constitutional principle may operate very differently in different contexts… And setting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless…

It’s nice that O’Connor and Scalia had at least one subject on which they could agree. Speaking of which…

Justice Scalia’s Dissent

Chief Justice William Rehnquist and Justice Clarence Thomas joined Justice Antonin Scalia in his 6000+ word dissent, which led off with a Scalia’s characteristic venom, sarcasm, and intentional point-missing:

The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that, after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment” of the Empire State.

Even Scalia couldn’t have genuinely believed that the First Amendment only kicked in once an institution attained a specific number of members or reached a preset threshold of political power. Playing on the struggles of the Satmar to set up the straw argument that the issue was one of dominance over the rest of New York was disingenuous at best, red-meat ranting better suited to Fox News than the nation’s highest court.

And the Founding Fathers would be astonished to find that the Establishment Clause – which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters” … has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.

Underneath the elitist spittle lies a potentially valid assertion – that the State in this case was simply accommodating a tiny religious group in a practical and neutral way, and that there was no reason to assume the New York Legislature wouldn’t treat others equitably as well. If they proceeded to violate that assumption, the courts would still be there.

Scalia distinguished the political community of Kiryas Joel (which just happened to be full of Satmars) from the religious body of Satmars (who had chosen to live together in Kiryas Joel). A grant of governmental authority to the Satmars would be a potential constitutional violation, but a grant of local governmental authority to a community which just happens to share a religion was not. By the majority’s reasoning, Scalia argued – almost rationally – neither Utah nor New Mexico could have been admitted as States, given their respective monolithic cultures at the time.

Like Abraham challenging God over the fate of Sodom and Gomorrah, Justice Scalia proceeds to asks how many non-Satmars it would have taken for the arrangement to magically become constitutional. Two? Five? A dozen? For a moment, he struck a productive blend of snark and insight – an example of what the rest of his opinion could have accomplished if only he’d resisted the urge to disparage his colleagues personally while mocking their arguments like a middle schooler.

JUSTICE SOUTER’s steamrolling of the difference between civil authority held by a church, and civil authority held by members of a church, is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional… The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities. It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect…
I have little doubt that JUSTICE SOUTER would laud this humanitarian legislation if all of the distinctiveness of the students of Kiryas Joel were attributable to the fact that their parents were nonreligious commune dwellers, or American Indians, or gypsies. The creation of a special, one-culture school district for the benefit of those children would pose no problem. The neutrality demanded by the Religion Clauses requires the same indulgence towards cultural characteristics that are accompanied by religious belief…
JUSTICE STEVENS’ statement is less a legal analysis than a manifesto of secularism. It surpasses mere rejection of accommodation, and announces a positive hostility to religion – which, unlike all other noncriminal values, the state must not assist parents in transmitting to their offspring.

He’s a bit gentler on Justices Kennedy and O’Connor, each of whom agreed with at least part of his position in their concurrences. Unable to help himself, however, he blows past O’Connor’s criticism of the Lemon Test and focuses instead on the inadequacy of her solution:

Unlike JUSTICE O’CONNOR… I would not replace Lemon with nothing, and let the case law “evolve” … To replace Lemon with nothing is simply to announce that we are now so bold that we no longer feel the need even to pretend that our haphazard course of Establishment Clause decisions is governed by any principle. The foremost principle I would apply is fidelity to the longstanding traditions of our people, which surely provide the diversity of treatment that JUSTICE O’CONNOR seeks, but do not leave us to our own devices.

Lest the reader forget his general disdain for the lesser beings Scalia was daily forced to endure, he concludes with a tidy little summary of the Court’s sins against reason, religion, and America:

The Court’s decision today is astounding. Chapter 748 involves no public aid to private schools, and does not mention religion. In order to invalidate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws…
This is unprecedented – except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration.

No doubt Scalia is somewhere complaining still, either about the shoddy harp-playing or the lack of air conditioning. Either way, he’s no doubt mocking former colleagues for their roles in the design.

Aftermath

The Supremes would continue to struggle with the line between accommodating religious beliefs and facilitating them beyond constitutional boundaries. Usually, this would involve more familiar scenarios – allowing vouchers to be used at religious schools, arranging for students to lead collective prayer at school events, or including religious symbols in holiday arrangements on public lands.

The Court would also waver on the precise application and usefulness of the Lemon Test. Though criticized by many justices along the way, it continued to prove useful enough to at least work its way into the discussion more often than not.

Kiryas Joel is still going strong, relatively speaking, and recently voted to separate itself even more completely from the Town of Monroe of which it was technically a part. As of 2019, Palm Tree is the first entirely ultra-orthodox town in the U.S.

RELATED POST: Kiryas Joel v. Grumet (1994) – Part One

RELATED POST: Kiryas Joel v. Grumet (1994) – Part Two

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Two

November 12, 2020June 4, 2023 ~ Blue Cereal

Some version of this Talmudic Tale will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct – which is both necessary and a tiny bit sad.

Recap of Part One: Kiryas Joel was (and is) a community of particularly insular Hasidic Jews (the Satmars) in New York. Most of their children attended private religious schools, but they asked the state for assistance providing care and education for their special needs children. Initial efforts to serve these particular children ran into conflict with recent Supreme Court rulings which struck down several public school efforts to serve high needs kids in religious institutions. New York responded by allowing the Satmars to create their own neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries.

As a practical matter, it certainly solved the problem. Constitutionally, on the other hand…

Larkin v. Grendel’s Den (1982)

Just a decade before, the Supreme Court had ruled on a case having absolutely nothing to do with religious enclaves or public education, but which would nevertheless complicate the lives of the Satmars just as things were looking up for their special-needs kids.

Many states have laws limiting certain types of businesses in proximity to local schools, churches, etc. While the underlying motivation is no doubt community standards with a side of morality (having a strip club next door might prove disruptive or horrifying to the average synagogue or daycare), these zoning restrictions are justified in the name of preserving property values and limiting the exposure of young people to drugs and alcohol or whatever. (Banning a nudie bar for being a nudie bar, on the other hand, would violate the First Amendment.)

In the Massachusetts version, bars or other potentially seedy organizations were welcome to apply for state licensing wherever they liked. Churches or other specified organizations within a certain distance, however, had veto power over these applications. That way, if everyone was fine with a new business, the state wasn’t interfering. If someone objected, however, they’d simply reject the application.

Grendel’s Den was a popular restaurant frequented by students and professors from nearby Harvard University. In the late 70s, they applied for a liquor license. It was rejected based solely on the objections of the Holy Cross Armenian Catholic Church, which was located literally next door. The restaurant sued, claiming this law was a violation of the Establishment Clause. They won the case in district court, and federal appeals court, all the way up to the Supremes where they won as well.

The law would have been fine if it simply banned bars anywhere near churches. (Whether that’s good law or not wasn’t the point; it was constitutional.) But the state could not delegate any or all of its powers and responsibilities to religious institutions, the Court explained. In terms of the Lemon Test, that’s excessive entanglement. Religious people and organizations have the same voice as everyone else expressing their wishes to their representatives; they cannot, however, be appointed to replace them as lawmakers.

Was New York essentially doing the same thing with its solution to the Kiryas Joel dilemma? Was this unique arrangement basically handing over a state-funded public school to a religious group so they could run it as they saw fit?

The Decision(s)

Yes, yes it was. The Supreme Court determined in a 6 – 3 decision that New York had violated the Establishment Clause by making this arrangement, however well-intentioned it may have been. As to the specifics, however, the majority was somewhat divided. Justice David Souter wrote for the majority and was joined by Justice Harry Blackmun, Justice John Paul Stevens, and Justice Ruth Bader Ginsburg for all of it, and by Justice Sandra Day O’Connor for most of it. Justice Blackmun wrote a separate concurrence, as did Justice O’Connor. His was brief; hers was not. Justice Stevens wrote a third concurrence in which he as joined by Justices Blackmun and Ginsburg, and Justice Kennedy wrote an entirely separate concurrence in which he supported the outcome but took a very different (and lonely) road to get there. (The dissent was much more united, as it often was when Justice Antonin Scalia was stomping around breaking things. Whether this indicates whole-hearted agreement or the other dissenters simply enjoyed watching him tilt at jurisprudential windmills is unclear.)

In short, there was only general agreement among the majority about why New York’s solution violated the Establishment Clause, but substantial agreement among the minority as to why the other six justices were big stupid poo-poo heads who hated Jesus and America.

Justice Souter’s Majority (mostly, sort of) Opinion

Justice Souter wrote for the majority, such as it was. His argument had two primary points.

First, the Constitution certainly allows states to accommodate religious needs by alleviating specific burdens. This particular legislation, however, shot past accommodation and right into establishment, all without seeking less entangled ways to accomplish the same thing. Instead, the state created what Souter called an impermissible “fusion” of governmental and religious functions as in Grendel’s Den.

Second, accommodations for religious beliefs are generally constitutional if they apply equally to anyone with a similar claim or need. Refusal to take up arms and fight for one’s country, for example, is acceptable if based on deeply held religious or ethical beliefs – ANY deeply held religious or ethical beliefs. There was nothing in place to guarantee the next religious group unhappy with the education system would be granted their own public school to play with and bend to their will. This arrangement solely benefitted one religious group – the Satmars.

Concurrences (Justices Kennedy, Stevens, Blackmun)

Justice Kennedy concurred with the decision, but tied his objections to the initial drawing of political boundaries that allowed the Satmars to create their own little village. Had the exact same thing come about organically (as a result of voluntary associations and such), it would be fine. The intentional cooperation of the government in drawing the lines based on religion, however, he found problematic.

Kennedy also lamented the interference of Grand Rapids and Aguilar in what might otherwise have been a workable solution – the public school “annex” for special needs kids operating right next to a Satmar private religious school.

The decisions in Grand Rapids and Aguilar may have been erroneous. In light of the case before us, and in the interest of sound elaboration of constitutional doctrine, it may be necessary for us to reconsider them at a later date. A neutral aid scheme, available to religious and nonreligious alike, is the preferable way to address problems such as the Satmar handicapped children have suffered… But for Grand Rapids and Aguilar, the Satmars would have had no need to seek special accommodations or their own school district. Our decisions led them to choose that unfortunate course, with the deficiencies I have described.

Justice Blackmun wrote a very brief concurrence merely to assert that despite not being explicitly relied upon in this case, the Lemon Test still rocked and screw the haters. (He put it a bit loftier than that.)

Justice Stevens was nearly as succinct, but his concurrence (joined by Justices Blackmun and Ginsburg) took issue with the State’s decision to address the “panic, fear and trauma” experienced by special needs Satmar children in a public school setting by helping to re-insulate them, rather than teaching other children (and staff) how to respect their beliefs and needs. One major purpose of public schooling is to promote diversity and understanding, he argued, and this would have avoided constitutional messiness altogether. Instead, the state became an active participant in ensuring these children would remain Satmar, not by choice or informed consent as they aged, but by joining forces with their religious leaders to prevent them ever knowing the difference.

The question of how far the state should go to assist religious parents in keeping their children shielded from understanding or interacting with people different from them is a biggie, and one many prefer not to talk about. The First Amendment prohibits government from promoting or discouraging a particular faith or the idea of faith in general. Public schools are founded on the understanding that civilization requires a common set of community values – mutual respect, communal responsibility, civic participation, etc. When religious values openly conflict with a core mission of public education, accommodation requires accepting that a percentage of the community is actively working against what’s best for the whole. That doesn’t necessarily mean the State should swoop in and free fundamentalist babies from their sectarian daycares, but it certainly runs counter to the idea taxpayers should actively assist efforts to keep them in their cultural cocoons.

RELATED POST: Kiryas Joel v. Grumet (1994) – Part One

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part One

November 10, 2020June 4, 2023 ~ Blue Cereal

I’m discovering as I continue to draft a follow-up to “Have To” History: Landmark Supreme Court Cases that it’s more and more difficult to keep things succinct as subject matter nears the 21st century. There’s so much relevant context for each case and potential applications are far more immediate… it’s difficult at times to know what’s essential and what’s not.

I’m sharing a few rough drafts along the way partly in hopes a few of you, my Eleven Faithful Followers, might find them interesting, and partly because nothing highlights the problems in a text like posting it live for all the world to see. Some version of this material will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct – which is both necessary and a tiny bit sad.

Three Big Things:

1. In an effort to accommodate a particularly insular community of Hasidic Jews (the Satmars), the State of New York created a neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries. Most children attended private religious schooling; the public school served only special needs kids from the Satmars and surrounding Hasidic communities.

2. The Supreme Court found this to be a violation of the Establishment Clause, although admittedly not by much. The lines between accommodating religious beliefs and unconstitutionally supporting them were (and are) often complicated and difficult to agree upon.

3. Prior decisions regarding the “entanglement” of the State in religious education required reconsideration. There might actually be less mess and conflict in allowing states a bit more flexibility in how they managed their educational resources.

Context

The circumstances of Kiryas Joel were unusual enough that the logistics themselves offer little to guide future students, parents, educators, or administrators. For anyone not living or working in a carefully constructed community of cultural outliers who end up with their own state-financed school district for special needs children, there seems (at first glance) to be little reason to devote more than a few lines to the case and its outcome.

And yet, taken in context, the case offers several points of interest and possible instruction – even for those uncertain what Hasidic Judaism even means.

Kiryas Joel offered an interesting case study in the impact of unintended consequences as it struggled to reconcile recent precedent with the circumstances actually before the Court. Justices wrestled with the validity and usefulness of the “Lemon Test” as well as the appropriate lines between accommodating free exercise vs. propping up religion with State resources. Many of the issues involved were minor variations on those shaping the so-called “school choice” debate evolving at around the same time. It’s easy enough to distinguish between free exercise and establishment in theory, but when stirred together with the State’s vested interest in universal education, the rights of special needs children, religious tensions, economic realities, and a little political pragmatism, it’s all but impossible to meaningfully isolate either ideal.

Finally, Justice Antonin Scalia yet again proved himself incapable of merely disagreeing with a decision or the reasoning behind it without sarcastically eviscerating everyone involved. In this case, however, Justice David Souter, writing for the majority (or at least the plurality – it’s complicated), rolled his rhetorical eyes and played the “there goes crazy Uncle Tony again” card. “Justice Scalia’s dissent is certainly the work of a gladiator…” he wrote, “but he thrusts at lions of his own imagining.”

So what happened in Kiryas Joel to spark this particular kerfuffle?

Background

Satmar Hasidic Judaism is a particularly strict branch of the faith which practices separation from the world and comes with its own religious laws and traditions. Members live in tight, crowded communities where they primarily speak Yiddish and avoid television, radio, newspapers, and the like. Men are in charge, no one uses birth control and, while peaceful, they don’t play well with others. On the other hand, they do rock their hat game. The modern shtreimel is simply fearless.

Kiryas Joel is an enclave of Satmars in New York’s Hudson Valley. Property in the area was purchased by the Satmars in the 1970s for the sole purpose of forming this exclusive community; it was quickly filled and became largely self-sufficient. Children are educated in private yeshivas, where the focus was Jewish law and traditions. Most daily interactions are governed by Jewish law rather than the state.

Like any community of 8,000 or so, a small percentage of Satmar children were special-needs. The Satmars weren’t going to win any participation trophies with larger society, but they paid their taxes like everyone else and asked the local school district to step up and help. For a community priding itself on isolationism, someone in the mix must have been aware of precedents like Witters v. Washington Dept. of Services for the Blind (1986), Meek v. Pittenger (1975), Committee for Public Education and Religious Liberty v. Nyquist (1973), all the way back to Everson v. Board of Education (1947). (Zobrest v. Catalina Foothills School District was decided a year before Kiryas Joel, meaning the cases were working their ways through the system at roughly the same time.)

Also in the mix was the Individuals with Disabilities Education Act (IDEA) signed into law by President Ford a few years prior. IDEA was a well-intended piece of legislation which nevertheless created infinite logistical and economic nightmares for districts now required to provide intensive levels of service for a very small number of children while being slandered by the same lawmakers who passed it for not being more cost-effective – you know, like the private religious schools who aren’t bound to do anything they don’t feel like doing or accept anyone they don’t feel like accepting.

In any case, Kiryas Joel was on firm constitutional ground making this particular request, and the local public school district readily complied. Initially this meant providing services in an annex attached to one of Kiryas Joel’s private religious institutions, an arrangement which was barely a year old when the Supreme Court announced its decisions in Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985). In each of these cases, public school assistance to students in private religious institutions was ruled to violate the “excessive entanglement” part of the Lemon Test and thus ruled unconstitutional. So… time for Plan ‘B’, apparently.

The district began transporting special needs Satmar kids off to their own facilities and continued to educate them there. The problem was, these public schools were, well… public – as in, they took all comers and did their best to make sure everyone got along and were treated more or less the same. With this came a certain lack of sensitivity to the ways of the Satmars, which may have reflected well-intentioned ignorance, a rejection of their culture as weird or undeserving of accommodation, or some combination of both.

In any case, it didn’t go well. In one egregious example, the Hasidic kids were apparently taken to McDonald’s for lunch along with everyone else. (For those of you not rolling Hasidic, their menu isn’t exactly kosher.) In another, a disabled Satmar child was dressed up as Rudolph the Red-Nosed Reindeer for a holiday pageant – another major no-no for super-conservative Jews, or… any Jews, really.

These sorts of things would create issues for any child, but these were high-needs kids who weren’t always able to process the world at maximum efficiency anyway. Plus, they didn’t just come from a different faith – they came from an entirely different world. The people were different, the clothes were different, the dynamics and expectations and norms were all completely different. The Satmars quickly pulled their kids back out of Insane Heretic School, but were left with their original dilemma – how to afford special needs education for a few dozen kids.

The State Legislature of New York, with the approval of Governor Mario Cuomo, offered a solution. They created a new school district whose boundaries just happened to correspond exactly with the village of Kiryas Joel. Now there was a public school composed entirely by Satmar kids. Theoretically this could have included any of them, but – wacky coincidence – only the special needs kids’ families opted to have them attend. As it turned out, another few dozen came from outside the village, making a total school population of around 40.

As a practical matter, it certainly solved the problem. Constitutionally, on the other hand…

RELATED POST: Kiryas Joel v. Grumet (1994) – Part Two

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

September 25, 2020June 4, 2023 ~ Blue Cereal

Good Evening, I’m Pierce Lively…

If 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!

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.

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…

Whoa 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.

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?

In 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…

Imagine

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.

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…

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…

Have 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…

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.

Print 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.

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

September 23, 2020June 4, 2023 ~ Blue Cereal

This Is Not About Monkeys

While researching what I hope will be an upcoming book about the “wall of separation” as it relates to public education, I came across as case which has fascinated me far out of proportion to its actual importance. Since I try to keep the published stuff concise and balanced and semi-professional, I’m getting the rest of it out of my system here.

You’re welcome.

I’ve already written about Mozert v. Hawkins (6th Circuit, 1987) in Part One and Part Two, and fully intend to wrap it up here in this final post – so you can realistically expect Part Four sometime early next week. *sigh*

The Story So Far

Parents in Hawkins County, Tennessee, led by Vicki Frost, objected to a literature textbook being used in their kids’ public school. The families were fundamentalist Christians, and the stories in the reader were all about imaginary places and events, appreciating different cultures, and asking important questions about what’s truly important – the antithesis of their faith, they insisted. When the school refused to let their kids opt out of using this particular book, they took them to court.

The case began in the Eastern District of Tennessee under Judge Thomas Hull. He rejected a number of their complaints as outside the purview of the federal bench, instead choosing to deal exclusively with the suggestion their free exercise rights were being violated. It didn’t take long – he issued a summary judgement dismissing the case, explaining that there wasn’t enough substance to their complaint to merit a full trial.

The parents appealed to the 6th Circuit Court of Appeals, which suggested maybe Judge Hull should suck it up and give them a real trial because… Issues! Evidence! Hearings! So, back to the ED of TN it went. This time, Judge Hull would find in favor of the parents. He even ordered the school to pay their legal fees. His written opinion is quite… extensive. If members of the bench weren’t totally above such things, one might think he seemed a tad sore about being scolded by his superiors for not taking the case seriously enough. He’d show them time and attention and thought and legal analysis, by golly!

But that, of course, would be ridiculous. He probably just had a lot to say. Fervently.

I’m not going to cover it extensively here, but there are a few highlights which beg for attention. Keep in mind that Hull will be overturned by the 6th Circuit, whose ruling will essentially cite the same reasons he’d given for his summary judgement in the first place – although they’ll say it a bit fancier and with more citations.

Juxtapositions & Implications (Excerpts from Judge Hull)

Judge Hull opens with a basic summary of the case so far, then adds this intriguing commentary:

It is important to note at the outset that the plaintiffs are not requesting that the Holt series be banned from the classroom, nor are they seeking to expunge the theory of evolution from the public school curriculum. Despite considerable fanfare in the press billing this action as “Scopes II.” it bears little relation to the famous “monkey trial” of 1925. These plaintiffs simply claim that they should not be forced to choose between reading books that offend their religious beliefs and foregoing a free public education.

There was fanfare? It seems odd that a federal judge would accuse local media of #fakenews (or at least the 1980s version) in a formal opinion. It’s even odder that anyone would have nicknamed this case “Scopes II,” particularly since that nickname had already been given to an Arkansas case in 1968 – one actually about evolution.

This action juxtaposes two of our most essential constitutional liberties the right of free exercise of religion and the right to be free from a religion established by the state. Moreover, it implicates an important state interest in the education of our children. The education of our citizens is essential to prepare them for effective and intelligent participation in our political system and is essential to the preservation of our freedom and independence.

If you wanted to capture every important element of this case in as few words as possible, you couldn’t do better than that. The “religion clauses,” public education, patriotism, and world citizenship. Add sex and contrived melodrama and you’ve got a mini-series.

From a constitutional standpoint, the most interesting thing was the natural tension which sometimes occurs between free exercise and non-establishment. Socio-emotionally, however, the real hand grenade was the question of individual parental rights (with a side of religious freedom) vs. the presumed long-term good of the child and of society as a whole. Civilization is premised on the idea that we’ll each forego a degree of personal autonomy in order to benefit from participation in society. Schools are a major part of that arrangement.

Public education isn’t primarily intended to be a baby-sitting service, nor should it be overly focused on prepping “meat widgets” for easy plugging into the needs of local employers. Its flavor and mechanics have evolved over the past 250 years, but one thing has remained consistent – at its heart, public education is about trying to build educated, insightful, free men (and later, women) capable of ruling themselves as well as helping to run a rather large republic. Not annoying fundamentalists who find society horrifying to begin with isn’t part of the mission statement, nor should it be.

The Underlying Conflict (It’s Not Between Clauses)

In 1944, the Supreme Court heard Prince v. Massachusetts, one of many Jehovah’s Witnesses cases reaching them in the mid-20th century. This one was a rare loss for the Witnesses. At issue was the question of child labor laws and whether or not parental rights – specifically, their “freedom of religion” – offset or overrode secular statutes designed to protect the child’s welfare. Justice Wiley Rutledge, writing for the majority, penned one of the most succinct and powerful comments in the history of the Court:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

This is a truth which has sadly been largely forgotten as the political weight of various religious groups has expanded substantially in recent decades. Too often, legislatures and courts have opted to allow children to suffer from easily curable illness, die from easily treated maladies, or undergo all varieties of sexual and emotional abuse rather than risking any appearance of “interfering” with “parental rights” or “free exercise of religion.” Little wonder, then, that it’s often difficult for local schools to stand their ground on such matters.

Things weren’t quite so severe in Mozert v. Hawkins, but you can feel the issue writhing throughout the rhetoric as the courts sought to balance parental rights with societal good and a vestigial belief in putting the welfare of the child ahead of the whims of the adult. Should parents have the right to ensure that their child grows up unable and unwilling to interact productively with those outside their bubble? To be taught bogus science and history as fact and intolerance as faith? Where, exactly, is the boundary between freedom of religion and freedom from the social contract on which civilization is built?

We Need A Cool Name

Here’s a cute little bit of trivia which has somehow failed to come up before now:

In September 1983, a group of Hawkins County residents, including most of the plaintiff-parents, formed an organization named Citizens Organized for Better Schools (COBS). Members of COBS spoke at regularly scheduled school board meetings… objecting, among other things, to the use of the Holt series. The COBS members apprised the Board that they found the Holt series offensive to their religious beliefs and presented petitions requesting removal of the Holt series from the schools.

First, “among other things”? There were other things? Try to pretend you’re not dying to know what else they brought up. Go ahead – try!

Second, “COBS”? Their self-selected group name was “COBS”? As in, things we say are up someone’s @$$ when they’re being unreasonably rigid or demanding in their beliefs? It’s not even a great group name spelled out – “Citizens Organized for Better Schools”? Was “Families Asserting Sincere Classroom Involvement Since Textbooks Suck” already taken?

You’d think with a little creativity and imagination, they could have—oh, wait… I guess that was the whole point of the lawsuit, wasn’t it?

“When deciding a free exercise claim, the courts apply a two-step analysis. First, it must be determined whether the government action does, in fact, create a burden on the litigant’s exercise of his religion. If such a burden is found, it must then be balanced against the governmental interest, with the government being required to show a compelling reason for its action.”

Notice the issue is not merely whether or not the school’s actions are creating a burden on the parents’ “free exercise.” If it turns out they are, does the government have a sufficiently GOOD REASON for what they’re doing? The right to free exercise is not absolute. It should be weighed against the public good (see above).

In addition, it must be determined whether the state has acted in a way which constitutes “the least restrictive means of achieving {the} compelling state interest,” as measured by its impact upon the plaintiffs. (Thomas v. Review Board, 1981).

So there were three basic questions. (1) Is free exercise being violated? (2) If so, is it for a valid reason? (3) If it is a valid reason, are there less-violative ways the state could accomplish the same thing?

How Violative You Wanna Be Today?

It appears to the Court that many of the objectionable passages in the Holt books would be rendered inoffensive, or less offensive, in a more balanced context. The problem with the Holt series, as it relates to the plaintiffs’ beliefs, is one of degree. One story reinforces and builds upon the others throughout the individual texts and the series as a whole. The plaintiffs believe that, after reading the entire Holt series, a child might adopt the views of a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian, or an advocate of a “one-world government.”

This is a valid concern. Still, I wonder how differently things would have gone if the parents had pushed for the addition of more acceptable materials rather than the removal of those already there – a “the solution to offensive free speech is more and better free speech” approach. Of course, this is just some amateur Monday morning quarter-parenting.

Plaintiffs sincerely believe that the repetitive affirmation of these philosophical viewpoints is repulsive to the Christian faith so repulsive that they must not allow their children to be exposed to the Holt series. This is their religious belief. They have drawn a line, “and it is not for us to say that the line {they} drew was an unreasonable one.” (Thomas)

That’s true inasmuch as judging the belief itself. The government has no business worrying about the validity of specific convictions or doctrines. That doesn’t mean the rest of society has to cooperate with such beliefs, however.

Judge Hull goes on to find that the parents’ free exercise rights have clearly been burdened (something the district didn’t put much energy into contesting). The real question, then, was whether or not the school had dug in on the textbook thing as the “least restrictive means of achieving some compelling state interest.” In other words, were there ways to accomplish the same, valid state goal of educating children without forcing this particular issue with this particular textbook?

Compromises, Restrictions, & Sneaky Stuff Educators Do

Schools make these compromises all the time. The less you hear about them in the local news, the more successful they’ve been. “Professional Development” days for teachers just happen to fall on MLK Day or Good Friday. The transgender kid is given permission to use faculty restrooms so they avoid the spotlight and the school avoids an uncomfortable showdown. Teachers work out alternate arrangements with students over potentially problematic material in ways that make the family feel listened to but don’t require an unreasonable degree of additional preparation on the part of the teacher or other staff.

It’s not always possible, but it’s far more common than those outside the system probably realize. I’d even wager that somewhere in your kids’ school, teachers are having subtle conversations about Jesus or sexuality or drugs or other personal choices – not because they’re trying to manipulate your children behind your back or because they fear neither god nor the legal system, but because they care about young people. Kids come to us with all sorts of things they’re trying to process. Most of the time we’re not interested in telling them what to do so much as validating their concerns and their feelings and their confusion, then trying to nudge them away from doing stupid make-things-much-worse stuff. Sure, we could pick up the phone and start screaming “YOUR CHILD IS KINDA GAY NOW; GRAB THE CAR BATTERY AND CALL THE CONVERSION CAMP!” Maybe that’s even the professionally safe, legal thing to do.

But, you know – &#$% that.

Most teachers aren’t interested in openly opposing parents or anyone else. We’re just trying to teach a little history or math or whatever. But most of us also won’t go out of our way to add to a kids’ problems if we can avoid it. I realize it drives conservatives crazy to hear this, but at times your suspicions are correct – there are those of us periodically trying to figure out a legal, non-fireable way to do what’s best for your kids. There’s often an unpleasant dissonance, however, between what’s desperately needed by that young person in front of us with no one else to turn to and what’s dictated by cover-your-ass policies. I can shift the conversation back to those multiple choice questions they missed or write them a pass to the school counselor who doesn’t know them from Salvatore Perrone and have a much better chance of keeping my job, but I’ll probably go to Teacher Hell by way of tradeoff.

None of which is, um, probably the fault of Vicki Frost or the COBS – although the issues themselves are somewhat related. It’s also possible I’ve just uncovered the underlying reason for my fascination with this case, along with some uncomfortable realizations about a few of my own personal and professional issues.

*pause*

The point is, our primary job isn’t to make parents happy. It’s to do what’s best for kids and the society in which they’ll live – within the structure and limits of the gig, of course. I was, um… just kidding about that “my first thought isn’t always to out the kid to dad” stuff. I totally do. Every time. I’ll even bring the car battery.

The Decision in Tennessee

Here’s the crux of Judge Hull’s decision:

{T}he state, acting through its local school board, has chosen to further its legitimate and overriding interest in public education by mandating the use of a single basic reading series. The Court has found that compulsory use of this reading series burdens the plaintiffs’ free exercise rights. In order to justify this burden, the defendants must show that the state’s interest in the education of its children necessitates the uniform use of the Holt reading series that this uniformity is essential to accomplishing the state’s goals. Therefore, the Court must decide whether the state can achieve literacy and good citizenship for all students without forcing them to read the Holt series.

Well, if you frame it that way, it’s pretty clear what the court’s answer is going to be…

It seems obvious that this question must be answered in the affirmative. The legislative enactments of this state admit as much. Although Tennessee has manifested its compelling interest in education through its compulsory education law, it has, by allowing children to attend private schools or to be taught at home, also acknowledged that its interests may be accomplished in other ways and may yield to the parental interest in a child’s upbringing. Moreover, the fact that the state has approved several basic reading series for use in the Tennessee public schools tells us something of the expendability of any particular series.

In defense of the district, they weren’t saying that the only way children in the state of Tennessee could be properly educated was to read this textbook. They were arguing that teachers can’t realistically teach a room of 30 kids effectively if they let everyone customize the curriculum as they see fit. We talk a good game about “individualized instruction,” and we do our best to tweak it when we can. But public education only works on the budget it does because of economies of scale.

We can leave off the onions or upsize the fries, but if it’s burger day, we’re doing burgers. Nevertheless, the parents in this case had successfully framed their case as a “hold the onions” issue, while the schools were arguing they couldn’t become Cheesecake Factory and offer every parent a full menu. As a result…

It is true that many of the plaintiffs’ objections suggest that other elements of the curriculum besides the reading program could easily be considered offensive to their beliefs. However… {they} have not made multi-subject, multi-text objections; they have objected to the Holt reading series. The defendants may not justify burdening the plaintiffs’ free exercise rights in this narrow case on the basis of what the plaintiffs might find objectionable in the future.

Well-played, Team COBS. Besides, there was one last strategic error on the part of the school which sealed their fate – at least until appeal.

Moreover, proof at trial demonstrated that accommodating the plaintiffs is possible without materially and substantially disrupting the educational process… The students at the middle school were provided with analternative reading arrangement for a period of several weeks. There was no testimony at trial that those arrangements resulted in any detriment to the student-plaintiffs. In fact, those children still received above average grades for that period. Even after the School Board mandate, compromise arrangements were worked out with some of the plaintiffs.

The danger in bending over backwards to accommodate parents or students is that once you’ve established that precedent, there’s no telling what you’ll be expected to do moving forward. Worse, teachers and administrators sound like complete tools whenever they express this up front.

That doesn’t mean they’re wrong.

The Solution

Under these circumstances, the Court finds that a reasonable alternative which could accommodate the plaintiffs’ religious beliefs, effectuate the state’s interest in education, and avoid Establishment Clause problems, would be to allow the plaintiff-students to opt out of the school district’s reading program. The State of Tennessee has provided a complete opt-out, a total curriculum alternative, in its home schooling statute… Although it will require extra effort on the part of the plaintiff-parents, these parents have demonstrated their willingness to make such an effort as the price of accommodation in the public school system.

Damn – who saw THAT coming? “Since the parents won’t bend and the school is acting like making adjustments would be such a burden, how ‘bout we just let these kids learn to read at home?”

To make it more palatable, Judge Hull ordered the district to pay the parents a bunch of money for their trouble.

Mozert v. Hawkins will make one final stop at the 6th Circuit Court of Appeals. They’ll throw in a few even more interesting details before making their final decision. We’ll talk about that next time.