The Alabama State Board of Education voted 5 to 4 last week to appeal a federal district judge’s landmark order banning 44 textbooks from use in the state’s public schools because they promote the “religious belief system’’ of secular humanism.
As the board was making its decision, school officials in the state began removing the books from classroom shelves, and textbook publishers and legal experts continued to debate the implications of the March 4 ruling by U.S. District Judge W. Brevard Hand.
The judge ruled in favor of 624 Mobile County parents, students, and teachers, many of whom are fundamentalist Christians. They charged that the religion of secular humanism, which places man’s values above any divine authority, was being advanced in Alabama’s public schools in violation of the First Amendment.
In developments last week:
- The state board of education, under what observers described as “intense’’ political pressure, narrowly approved a motion to appeal the decision. The board also asked the judge to stay his order pending the appeal.
Opposition to the appeal was led by four of the board’s five newest members, according to observers at the March 12 meeting in Montgomery. Gov. Guy Hunt, who acts as the board’s chairman, voted with the dissenters to let the ruling stand.
- Judge Hand indicated last week that he may allow the schools to use the banned books until the end of the school year. He also said he was “amazed’’ that his ruling was being characterized as government censorship, according to press reports.
- In Mobile County, where the case originated, students and teachers turned in their copies of the disputed textbooks. Other school districts were waiting for direction from the state board before removing the books.
In his 172-page opinion in the suit, Smith v. Board of School Commissioners of Mobile County, Judge Hand ruled that humanism is a functional equivalent of a religion, and that the challenged textbooks unconstitutionally promoted it in the public schools. He also found that the books largely omitted the role of Judeo-Christian religions in American history.
He ordered the state board to remove the offending books from its list of approved textbooks. Under Alabama law, school districts cannot use books that are not on the state’s approved list.
The board has been under pressure to drop the case since the other original defendants--including then-Gov. George Wallace and the Mobile County school board--backed out of the suit in 1985. But the board’s vice president, John Tyson Jr., has pushed the board to defend the books.
Lawyers for the board filed a motion last week asking Judge Hand to delay the implementation of his order until the end of the school year.
The judge had not made a decision as of late last week, but he said he might go along with the request, according to a court clerk.
Lawyers for the plantiffs last week asked the state board to agree that if the judge does delay his order, schools would provide students with copies of parts of the testimony in the case relating to the books.
The board had not decided by late last week whether to accept the proposal.
Around the country, lawyers familiar with First Amendment issues questioned whether the opinion would hold up on appeal.
“For schools, the establishment clause [of the First Amendment] always meant that you cannot teach a religious belief,’' said August W. Steinhilber, general counsel for the National School Boards Association. “But Judge Hand said the failure to include religion [in the curricula] is itself creating a new religion called secular humanism, which is therefore forbidden.’'
“So if you include religion,’' he continued, “you are establishing religion, and if you exclude religion, you are establishing religion. It’s an untenable position for schools.’'
“The judge has decreed that the public schools have to structure their curriculum in a way that gives ‘equal time’ to all religions,’' said David H. Remes, a lawyer with the firm of Covington & Burling in Washington. “This is an unprecedented federal judicial intrusion in policymaking.’'
But Bruce Fein, a visiting fellow with the conservative Heritage Foundation who is often mentioned as a possible Reagan Administration nominee to the U.S. Supreme Court, said that part of the ruling follows a precedent set by the Court in a 1981 case, Widmar v. Vincent. In that case, the Court ruled that a public university could not exclude student groups from holding religious services on campus property.
“The omission of discussion of the religiosity of many of our national heroes could be a violation of the equal-protection clause,’' he said. “That portion of the decision may have a very, very substantial chance of standing up on appeal.’'
Gary L. Jarmin, a political consultant to Christian Voice, an evangelical lobby, said he was certain the appeals court would reverse Judge Hand’s decision. But, he added, the judge’s ruling represents a “long-term victory’’ for conservative Christian activists.
“The fact that a court said humanism is a religion and it is being taught is an enormous victory,’' he said. “Before, it was like nailing Jell-O to a wall. This will help stir a lot of debate.’'
Several major textbook publishers defended their books and said the decision would have little impact.
“I don’t know what the definition of secular humanism is yet,’' said Robert E. Kellar, managing editor for social studies for Charles E. Merrill Publishing Company.
“We surely don’t feel we need to drastically change our textbooks,’' said Albert Bursma Jr., president of the school division of D.C. Heath and Company. But, he said, “more attention will be paid to the role of religion in history.’'
A version of this article appeared in the March 18, 1987 edition of Education Week as Ala. Board Will Appeal Textbook Ruling