A wise friend and teacher has said that the free-speech guarantee of the First Amendment is “delusive” in the simplicity of its phrasing. Unfortunately, the same must be said of the amendment’s religion clauses. In giving content to their grand words, the courts too often “add mud to already muddy waters,” as Chief Justice William H. Rehnquist has put it. U.S. District Judge Thomas G. Hull’s recent decision in Mozert v. Hawkins County Public Schools is a particularly regrettable example.
In Mozert, fundamentalist Christian schoolchildren and their parents in Tennessee claimed that the public-school authorities were violating their rights of religious freedom by insisting that the children learn to read from textbooks that offended their religious beliefs. They insisted that the free-exercise clause prohibits such an imposition and they sued to enjoin it.
Judge Hull agreed with the plaintiffs that forcing the children to learn reading from such textbooks, as the price of access to the public schools, violated their rights of religious freedom. Since the authorities were unwilling to allow the children to read from textbooks that did not offend them, the judge held, the children must be permitted to “withdraw to a study hall or to the library” during the reading period and to study with their parents later at home.
In Judge Hull’s view, Mozert was a case in which the state had impermissibly compelled people to sacrifice adherence to their religious beliefs in order to obtain an important government benefit. The school board, he said, had effectively required the fundamentalist students to read texts that offended their religious beliefs “or give up their free public education.” He acknowledged that the state has a compelling interest in educating the young, but concluded that “less restrictive means” were available to achieve this goal.
Judge Hull’s decision was not mandated by the First Amendment or by the U.S. Supreme Court’s decisions interpreting it. To the contrary, apart from his recognition that educating the young “ranks at the very apex” of a state’s obligations, Judge Hull’s analysis is wrong in every respect. He misperceived the nature of the public “benefit” involved, the nature of the “burden” imposed by the Tennessee authorities, the nature of the state interest involved, and the pitfalls in the opt-out alternative that he embraced.
What was the “benefit” at stake? Judge Hull treated the “benefit” at stake as instruction at the hands of state-paid teachers in state-operated facilities. In the judge’s view, “education” is fungible, like health care or legal service. It may be dispensed interchangeably by the government or by private institutions. Access to it can no more be conditioned by government on a person’s sacrifice of his religious beliefs than access to a community hospital or legal clinic.
This view is mistaken. Public education is not “public” just because it is free. It is “public” because it is a kind of education--an education that instructs children, as Justice William J. Brennan has put it, in “a heritage common to all American groups and religions.” That heritage is one that includes The Diary of Anne Frank and Huckleberry Finn. It is a heritage of tolerance and diversity. Public education is not and cannot be an education that instructs children in the orthodoxies of their parents.
Thus, the real problem in Mozert was not that children were being required to sacrifice their religious beliefs in order to have access to some fungible public ''benefit.’' The real problem was that the ''benefit” at issue--public education-itself was offensive to the fundamentalist parents and their children, incompatible with their religious beliefs. They were complaining about public education, not the conditions of access to it.
What was the “burden”? In Judge Hull’s view, the authorities had “burdened” the children’s rights of religious freedom by forcing them to this choice: “Either read the offensive texts or give up [your J free public education.” But putting citizens to this kind of a choice is not the kind of “burden” on religion that the Supreme Court has condemned in its free-exercise cases. Far from viewing it as a “burden,” the Supreme Court has treated the choice of sending one’s children to private schools as a fundamental right! Having chosen to send their children to public schools, parents cannot then complain that the curriculum offends their religious beliefs. If they are dissatisfied with the curriculum for other legitimate reasons, their remedy lies in persuading the school board to make changes.
Nor does the fact that the public-school curriculum may force some fundamentalist Christian parents to pay for a private-school education mean that their rights of religious freedom have been burdened. The Supreme Court has held repeatedly that the government does not burden the exercise of a protected right by refusing to subsidize it; and the fact that some parents might not be able to afford to send their children to private schools is immaterial. An individual’s inability to pay for what he wants does I not turn the government’s refusal to make it available to him for nothing into a “burden” in the constitutional sense of the term.
What was the state’s interest? No one disputed in Mozert that the state has a compelling interest in educating children. But the state has a more particularized interest than that, and it is just as compelling. Subject to the establishment clause and the First Amendment’s anti-censorship constraints, the state has a compelling interest in being able to define the curriculum in its schools, free from judicial interference at the behest of irritated parents.
The state’s interest here was not simply to teach children ''how to read,” but to define a curriculum in which reading instruction is an integral part of a broader program of development--one that involves exposure to a wide variety of materials that, as the state textbook commission said, will “realistically represent our pluralistic society.” The reading series at issue in Mozert was part of this curriculum. That is why, as Judge Hull noted, “the reading texts teach more than just how to read.”
Thus, the question is not, as the judge thought, “whether the state can achieve literacy and good citizenship for all students without forcing them to read [a particular textbook] series.” The question was whether the courts have any business telling a state how to instruct its children in our “common heritage.” The answer to that question is clearly “no.”
Are the “less restrictive alternatives” acceptable? Having found that the school district had burdened the plaintiffs’ rights of religious freedom by forcing them to choose between a “free public education” and being exposed to offensive reading texts. Judge Hull cast about to determine whether there were any “less restrictive” means by which the state could achieve what he perceived as its interest--teaching children how to read. Even if the state’s interest were so narrow, the opt-out alternative approved by the judge is a prescription for disaster.
First, as school officials testified, it is unworkable. Judge Hull showed a lofty indifference to the fact that in grades 1 through 4 there is no separate reading period. Children in these grades simply cannot “withdraw to a study hall or the library” while reading is being taught, because in those grades reading is taught throughout the day. Children in these grades would have to be permitted to excuse themselves whenever instruction in any subject is offered using books that offend their parents’ religious beliefs.
In grades 5 through 8, the result is likely to be, at least in some school districts, to eliminate reading as a separate course, and to create the same problems of unworkability that will beset instruction in grades 1 through 4. For if any significant number of children boycott a reading class on religious grounds, school authorities will eliminate • that class. It is economically unjustifiable to dedicate teacher time to under-enrolled courses and, according to the school board’s testimony, educationally unsound.
The only way for a school to avoid such boycotts--in any grade--would be to remodel its entire curriculum to include books that are objectionable to no one on religious grounds. It is doubtful that this is possible. Everything is bound to be religiously objectionable to someone. The result will be that the largest religious constituencies in the public schools will end up dictating the curriculum-a flat violation of the establishment clause.
Meanwhile, children of minority religious faiths could still boycott class, although there would be tremendous pressure on them to attend class in order to keep the class economically and educationally viable. They certainly will not wield the censorial power of the more popular sects. The burden of the majority religions’ curriculum choices would fall squarely on them.
Both of these results--educational fragmentation and religious censorship--are devastating from a First Amendment standpoint. In the end, as Justice Robert H. Jackson warned nearly 40 years ago, undertaking to eliminate from the public-school curriculum all that is religiously objectionable to some religious sect will “leave public education in shreds"--or make it hostage to the demands of the dominant religions.
These are the consequences threatened by Judge Hull’s decision. But the problems that led to the lawsuit in Mozert will remain even if his decision is overturned. The existing climate must change. Fundamentalist Christian parents must realize the disservice that they are doing to their own children-- and the harm they are doing to public education generally--in demanding a public-school curriculum that gives them no offense. They must come to understand that the public schools cannot teach their religious beliefs. The courts will do their part, but they cannot teach these lessons.
