No recent court decision has been more widely publicized than that of U.S. District Judge Thomas G. Hull, on Oct. 24, holding that the Hawkins County (Tenn.) Public Schools must allow fundamentalist Christian parents to opt out of the school district’s reading program because of their religious beliefs.
Acclaimed by some as a victory for parental rights and religious freedom, and denounced by others as threatening the disruption of public education, comment on the decision has moved out into seemingly ever-widening circles.
What function the judiciary should have in passing upon school-board matters, what function public schools should have in imparting philosophical values to children, and what implications the court’s decision may have in terms of First Amendment principles generally are among the broader questions whose discussion the decision has quickened.
Judge Hull’s decision is being appealed. The appellate courts may disagree with his view. My comments on the case, Mozert v. Hawkins County Public Schools, will nonetheless endeavor to examine the decision solely from the perspective of presenting existing constitutional law.
Tennessee statutes confer on public school boards the powers to prescribe the textbooks to be used in their schools. By and large, nationally these prescriptions have been accepted by parents and unchallenged by court action.
The textbook litigations that have ensued have chiefly consisted of efforts to have particular books barred from the school for classroom use by any student, or removed from the school library, or to have certain books added to the prescribed list. The Mozert case has none of these features. The facts of that case are as follows:
The selected books in question constituted the Holt, Rinehart & Winston 1983 basic reading series for grades K -8. The selection was not haphazard, but represented the judgment of the school district’s book-selection committee, which had evaluated several series of textbooks. The school board had unanimously approved the committee’s recommendation. The Holt series was received without objection by a large majority of parents in the Hawkins County public school system.
A minority of parents, of fundamentalist Christian faith, found the series religiously objectionable and asked that their children be provided alternative reading instruction. The school board responded by unanimously adopting a resolution requiring all teachers to use only textbooks that the board prescribed. The parents were refused alternative readers.
When children of objecting parents refused, on religious grounds, to read the Holt series or to attend classes in which the series was used, they were immediately punished by suspension. They then withdrew from the schools. Their parents (and they) then commenced court action in the U.S. District Court for the Eastern District of Tennessee against the school district and related officials under the First and 14th Amendments and several federal civilrights laws on the ground that the school board’s action violated the rights of both the parents and the children. The state commissioner of education, deeming the case to involve public educational interests statewide, intervened on the side of the school board. The parents were promptly rebuffed by the district court, which, seeing no need for a trial, summarily rendered judgment against them. The U.S. Court of Appeals for the Sixth Circuit reversed, sent the case back to the district court for full trial, and read the district court a lesson on how, under the First Amendment, religious-liberty cases must be dealt with.
The court of appeals did not rule on the ultimate question of who was right in the case, but simply restated what the U.S. Supreme Court had long since laid down: that where people complain that governmental action offends their religious beliefs, (a) they must prove that they hold these beliefs sincerely and that the protested governmental action really injures the exercise of those beliefs, and (b) the government must prove that a truly compelling public necessity requires restricting that exercise and that no less restrictive means are available.
With that mandated script in hand, the district court took up the case anew, conducted an extensive trial, and ruled in the parents’ favor. The court had no difficulty in finding that the parents had met their burden of proof under (a) above. The court refused to be drawn into the theological thicket of attempting to define whether the parents’ beliefs concerning the textbooks were really “central” to their religion. Correctly, the court stated that, under previous I Supreme Court decisions, the question is not whether a belief is “central,” but whether it is religious.
The evidence permitted the court no other conclusion than that--whether sensibly or foolishly--the parents’ religious claim was sincerely religious and that their beliefs were profoundly offended by the textbooks in question.
The court then approached what was the turning point of the case: whether a compelling societal interest dictated that the parents’ children be forced to read the prescribed books, or otherwise forfeit a free public education. The court found no such compelling interest to exist; further, that a useful alternative existed in permitting the children to opt out of the reading program, to withdraw to a study hall or the library during the reading period, and to pursue a program of home reading, with a parent, under existing home-schooling provisions of Tennessee law.
Such are the facts and the judgment in the Mozert case.
My own appraisal of the decision is that, against the background of Supreme Court decisions, Judge Hull could not have ruled otherwise. Critical questions are now being raised about the decision. I now pose these and give the answers as I see them in constitutional terms.
What business has a court pre-empting the role of a school board? None, of course. But suppose that the school board is charged with violation of constitutional rights: Are our courts barred from inquiring and acting?
We have not thought so in the desegregation cases or in the Bible-reading cases. And in Tinker v. Des Moines School District, the Supreme Court held unconstitutional the action of a school district barring students, under pain of dismissal, from wearing armbands symbolizing protest of the Vietnam War. In these and many other cases, our courts have indeed dealt with school-board issues, and vetoed schoolboard actions. I see no violation of the principle of separation of powers (or of state’s rights, for that matter) in any of these cases--or in the Tennessee textbook case.
Does Judge Hull’s decision give parents veto power over public-school programming? It is undeniably true that school boards must have liberty to carry out their legal responsibility to assist in the education of children. But two considerations must be borne in mind.
First, at least so the Supreme Court has repeatedly held, the parental right in education is primary. There are indeed bad parents, negligent parents, and ignorant parents. But the rights of all parents must not be placed at risk because of the failings of some. Our Constitution and laws have never recognized the state as the sole educator or the primary educator.
This comes into sharp focus when we come to a second consideration. That is, that local school boards are not immune to error. As Justice Robert H. Jackson stated in his superb opinion in the Barnette case (involving state imposition of the flag salute on children of Jehovah’s Witnesses).
“Such [educational Boards are numerous and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity and be less vigilant in calling it to account. ... There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond the reach of the Constitution.”
The Tennessee case involves the protest of one set of parents against one kind of textbook. Suppose that, instead of fundamentalist Christians, these plaintiffs were Catholics protesting having their children forced to read the screeds of Tony and Susan Alamo, or Jews protesting a book calling the Holocaust a fraud, or black parents, a Schockleyite text?
We dare not trivialize such protests merely because it is a minority--even one deemed by some to be eccentric--that makes them. Book-forcing, in the face of sincere religious objections, is simply unthinkable where alternative means of learning reading are available.
Doesn’t Judge Hull’s decision call for administrative chaos? The decision--carefully, in my view--weighs its consequences. The court found no evidence whatever that school boards are now going to be flooded with demands for exemptions. Undoubtedly, that is the common sense of the matter. The court explicitly limited its decision to the narrow case before it--the particular objection of the particular plaintiffs to a particular book series.
But of greater importance is the fact that administrative inconvenience can rarely stand as a reason for overriding the exercise of First Amendment freedoms. Our school boards have traditionally found themselves able to adapt to situations of inconvenience. Busing for desegregation purposes has been the occasion of monumental inconvenience--and vast expense. Not a fact in the record of the Mozert case, nor even in the highly speculative commentary that has damned the Mozert decision, lends any ground whatever to the proposition that severe administrative difficulties are now in actual prospect, or, if so, that it is worth scrapping civil liberties in order to avoid them.
A version of this article appeared in the December 03, 1986 edition of Education Week