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.

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.

Tell Him About The Twinkie, Ray

In researching cases for the follow-up to “Have To” History: Landmark Supreme Court Cases, I came across a case from Tennessee that simply fascinates me, despite being a relatively minor decision in the larger scheme of things. Unable to resist chasing this particular rabbit trail, I posted last time about the basic complaint (fundamentalist parents didn’t like a literature textbook) and the summary dismissal by a federal judge in Eastern Tennessee. The case was appealed to the Sixth Circuit Court of Appeals, however, which is where we pick up today.

I’m simply giddy, aren’t you?

Let’s Phrase That Differently…

Part of the appeal of digging through the written records of this case as it bounced around the courts is that we lack easy access to the specific complaints, the textbook itself (although I’m working on that), and any verbal arguments made in various courts. Those things may be public record in Tennessee or Ohio somewhere, but short of a road trip (“Hey, honey? I know you were looking forward to seeing your parents over the holidays, but I’m super-curious about some obscure court transcripts from 35 years ago, so… can we go the other direction instead?”), all we have are the decisions of various judges.

They’re all looking at the same material; the differences in what’s discussed at each step is a function of the status of the case and what each court wishes to emphasize. For example, we have the 6th Circuit’s complete response to the parents’ appeal. They refused to hear the case (this first time), but neither were they sold on the lower court’s decision to issue a summary judgement in favor of the school district. Why?

In our opinion, as hereinafter pointed out, there were sufficient disputed issues of fact not resolved to make it erroneous for the district court to grant summary judgment. We therefore reverse and remand for the district court to conduct an evidentiary hearing and to adopt findings of fact and conclusions of law.

This is no doubt standard judicial stuff – “It looks to us like judgey judgey, so legal legal legal, etc.” I’d make a poor member of the bench, however, because what I’m hearing is much closer to “Not sure what YOU were thinking, Mr. ‘I-Don’t-Feel-Like-Having-A-Real-Trial’, but this one needs to be heard FOR REAL. You know, if you’re not too busy to BE A FEDERAL JUDGE PROPERLY.”

I’m sure it wasn’t perceived that way, however. That would be silly.

Probably.

Overexposure Is Bad For The Soul

Appellants, who are fundamentalist Christians, brought an action in the United States District Court for the Eastern District of Tennessee… to enjoin the Board and its administrators from compelling their children to participate in classes which used the Holt primer and to instead permit them to have their own separate reading classes with a different “non-offensive” reading primer. The complaint alleged that the Holt books contained teachings which were contrary to their fundamentalist beliefs and that their religion forbade them from reading such contrary teachings. Appellants emphasized that they were not seeking to ban the Holt books from the schools nor did they object to its use by the rest of the student body.

This is an important distinction. The parents weren’t trying to get their own materials or beliefs injected INTO the curriculum; they were merely trying to allow their own children to opt OUT of the existing materials because they found them offensive. This sets the issue apart from issues like school prayer or creationism, in that they’re not apparently interested in pressuring other children into conforming to their religious druthers. If there were, the case would be far simpler. It might even have justified the way the judge in Tennessee completely blew them off and no-wonder-he’ll-never-reach-the-circuit-courts-like-us.

{A}ppellees submitted an affidavit by appellee Hawkins County School Superintendent Bill Snodgrass in which he defended the decision to use the Holt books. Snodgrass stated his belief that the books were very instructive and attractive and that they substantially enhanced reading skills. He warned that if the appellants were permitted to opt out of the regular reading program and to hold their own alternative classes “teachers would have no control over the management, they could not possibly teach skills in sequential order and the teaching-learning process would become completely unmanageable chaos.”

The “appellees” are school officials (roughly comparable to the “defendants” in a criminal trial). Superintendent Snodgrass made the first argument that would have come to my mind if asked to create a separate “non-offensive” lesson every time I used a story which didn’t overtly promote fundamentalist Christianity. “Are you kidding? I’m not doubling my work load in order to cater to a few, you know… wing nuts!”

Wisely, he didn’t put it that way. He started with what a swell book this particular publication truly is (although I desperately hope he didn’t actually call it “instructive and attractive”), then transitioned into “what they’re asking for isn’t practical.” The problem is that the school’s defense sounds rather whiney this way, and perhaps a tad melodramatic. “B-b-b-but… we couldn’t teach the SKILLS in SEQUENTIAL ORDER and it would all just end up… we mean… CHAOS!”

The district added that any attempt to create a second curriculum to accommodate a specific religious group would run them into trouble with the Establishment Clause. This is a bit like throwing a seatbelt violation onto a speeding ticket, but given the consistency with which the Supreme Court had been condemning perceived establishment violations in the decades leading up to Mozert, it was probably worth a shot.

The (Offensive?) Nature of Public Education

While the general idea of the Superintendent’s complaint is no doubt spot on, I have to wonder why his team didn’t lead with what to me is the much more palatable argument. “We WANT our kids to be exposed to a variety of ideas and beliefs. We’re not telling them what to believe; we’re trying to help them understand how other people think and feel – the essential foundation of all civilization. While the mechanics of grammar and structure may be the foundation of reading instruction, empathy is the heart and soul of all good literature. Teaching them that they don’t have to even be in the room anytime someone around them veers into non-fundamentalism isn’t freedom of religion – it’s freedom from thought, challenge, or diversity. It’s a violation of our ethical and professional obligation to prepare them to function in the real world – socially, professionally, and politically.”

Or something along those lines. And the Court got there on their own, eventually… sort of. I just find it an odd choice – right up there with the parents initially insisting they didn’t want their kids corrupted by deceptive creatures like Anne Frank, because that doesn’t conjure up unpleasant implications or anything.

Speaking of which, it sounds like the appellants (the parents who didn’t like the textbook) at some point revised their list of offending materials a bit. Not sure if this was before or after the case bumped up to the Sixth, but notice how differently this reads than the version we read about in Eastern Tennessee:

Appellants subsequently filed an amended complaint which more specifically set out their reasons for objecting to the Holt books. They claimed that the books were offensive to their religious beliefs because: (1) they teach witchcraft in violation of Biblical precepts against such teaching; (2) they teach that certain values, held to be absolute by appellants, are relative depending upon the situation; (3) they teach that it is proper to be disobedient to parents, despite Biblical precepts to the contrary; (4) they teach that idol worship may be beneficial and that prayer to a horse god may have helped to end World War II, despite the Biblical prohibition against idol worship and belief; (5) they teach that one can achieve salvation simply by having faith in the supernatural without necessarily believing in Jesus; (6) they teach that Jesus needed the help of Jewish scribes to write his story — thus implying that Jesus was illiterate — despite the fact that the Bible says that Jesus was literate and that his story was written by non-Jews; (7) they teach that man evolved from the common ancestors of monkeys in contradiction of the creation story in the Bible; (8) they teach “humanism, . . . one world concepts [and] antinationalism” — values which are contrary to those possessed by appellants.

While I’m still skeptical about the degree to which short stories in a middle school primer truly pushed little people into worshipping horse gods, this list has the significant benefit of not sounding completely insane. One might even begin to wonder if perhaps the touchy-feely, one-gluten-free-world mojo so popular with academic types in the late 1970s might have infiltrated the editorial choices of those most in a position to influence tiny brains. At what point have we raced well past “everyone is different” and ended up lost somewhere between “meat is murder” and “vote Bernie or we all perish”?

It’s Not A Bug; It’s A Feature

By way of driving their point home, those sneaky fundies had somehow secured a copy of the Teacher’s Edition of the textbook in question – which, for those of you outside the world of public education, is akin to nabbing the Ark of the Covenant from Indiana Jones or remotely hacking celebrity cell phones in order to post their dirty selfies online. The Court explains:

Appellants… cited an essay written by Thomas J. Murphy, Holt’s Senior Vice President for its school book division, which was published in the teacher’s edition of one of the Holt books. In this essay, Murphy noted that school reading programs involve more than simply the teaching of reading skills but also the shaping of students’ ethical values. He contrasted the values of the reading books used previously in the schools with the new Holt books. The former, he indicated, “emphasized a Judeo-Christian values system in a most direct way” while the latter emphasized the need for students “to have a sense of themselves as participants in a national and world community; to understand and to be mindful of the richness of our diversity.”

Appellants alleged that these statements show that the Holt authors rejected the traditional Judeo-Christian values and sought to teach contrary values. Appellants also cited several examples in the books themselves which they claim support their contention, including readings which discuss, without disapproval, Chinese, Islamic and Buddhist philosophy.

Reading isn’t just about the mechanics, the publisher’s Hippie-in-Chief contends – it’s about “shaping students’ ethical values” (and no doubt unblocking their chakras and promoting free love and such). How? By helping students see themselves as part of a larger world in which not everyone is like them.

What the district should have been proclaiming as its strongest defense, the fundamentalists were mic-dropping as irrefutable proof of the overt offense which set them off in the first place.

We’re going to come back to this. It is, in my mind, the most salient issue of the entire case – and the one connecting it in a very real way to major changes in how our nation is choosing to define itself a generation later.

First, however, we should wrap up the 6th Circuit’s decision.

Remanding and Demanding

Summary judgment may be granted only if there is no genuine issue with respect to the material facts of the case… This issue must be resolved on remand by the district court with appropriate findings of fact and conclusions of law.

{T}he state can permissibly impose a burden on an individual’s free exercise rights if the state has a compelling justification for doing so. Appellees insist that their interest in teaching reading to the elementary school students under their charge is just such a compelling interest which would justify the burden imposed on appellants. Further, they argue that to accommodate appellants’ demands would require them to violate the First Amendment’s establishment clause. Appellants, on the hand, insist that their opt-out proposal would not impair appellees’ ability to teach reading since appellees would still be permitted to teach reading with the Holt books to the rest of the student body and appellants would still be required to learn the very same reading skills as the other students, albeit with an alternative book. Again, there is a factual dispute which precludes disposition of the issue on summary judgment. A remand is, therefore, necessary for the district court to make factual findings and conclusions of law on this issue as well as to permit reasonable discovery if requested.

In other words, “We’re not deciding this here, but East Tennessee needs to give it another look – for real, this time – and base their decision on all the total facts available.”

Judge Hull of the U.S. District Court for the Eastern District of Tennessee would do just that. As instructed, he’d give the fundamentalists a fuller hearing and – hold on to your powdered wigs – decide that maybe they had a point after all. The first time through, he’d found that because the textbook and the school were entirely neutral towards religion in general or specific religions in particular, there was no First Amendment violation. The second time around (fresh from his scolding by the 6th Circuit), Hull found in favor of the parents and even fined the school district to pay for their legal expenses.  

Ready for the twist?

The case was again appealed to the 6th Circuit Court of Appeals, this time by the school district. The 6th Circuit overturned the verdict because – wait for it – the textbook and the school were entirely neutral towards religion in general or specific religions in general, so there was no First Amendment Violation.

There’s no record of what Judge Hull might have thrown through the wall or any naughty words he may have uttered upon reading their decision.

Next time we’ll look at the district court’s reasons for changing its mind and the 6th Circuit’s (final) determination of why the parents were going to have to be content with private or home schooling. After that, we’ll return to that salient point I mentioned – the part about what schools are supposed to be doing in the first place, and what happens when the druthers of individuals and the good of society starkly clash.

If you’d like to read my surprisingly well-researched, far less speculative, and 97% politically balanced take on the 45 most important cases in Supreme Court History, go buy my book. In the meantime, you can keep getting the unedited, rambling versions of the process right here for free.