religion in public education today
Epperson v. Arkansas
393 U.S. 97 (1968)
Mr. Justice FORTAS delivered the opinion of the Court.
I.
This appeal challenges the constitutionality of the ‘anti-evolution’ statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of ‘fundamentalist’ religious fervor of the twenties. The Arkansas statute was an adaption of the famous Tennessee ‘monkey law’ which that State adopted in 1925. The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927.
The Arkansas law makes it unlawful for a teacher in any state-supported school or university ‘to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,’ or ‘to adopt or use in any such institution a textbook that teaches' this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.
The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965—1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth ‘the theory about the origin of man from a lower form of animal.’
Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal.
She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute's provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action.
The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that the statute violated the Fourteenth Amendment to the United States Constitution. The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it ‘tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach.’ In this perspective, the Act, it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution.
On appeal, the Supreme Court of Arkansas reversed. Its two-sentence opinion is set forth in the margin. It sustained the statute as an exercise of the State’s power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.
Appeal was duly prosecuted to this Court under 28 U.S.C. s 1257(2). Only Arkansas and Mississippi have such ‘anti-evolution’ or ‘monkey’ laws on their books. There is no record of any prosecutions in Arkansas under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.
II.
At the outset, it is urged upon us that the challenged statute is vague and uncertain and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas’ Supreme Court. That court, perhaps reflecting the discomfort which the statute's quixotic prohibition necessarily engenders in the modern mind, stated that it ‘expressed no opinion’ as to whether the Act prohibits ‘explanation’ of the theory of evolution or merely forbids ‘teaching that the theory is true.’ Regardless of this uncertainty, the court held that the statute is constitutional.
On the other hand, counsel for the State, in oral argument in this Court, candidly stated that, despite the State Supreme Court's equivocation, Arkansas would interpret the statute ‘to mean that to make a student aware of the theory just to teach that there was such a theory’ would be grounds for dismissal and for prosecution under the statute; and he said ‘that the Supreme Court of Arkansas’ opinion should be interpreted in that manner.’ He said: ‘If Mrs. Epperson would tell her students that ‘Here is Darwin’s theory, that man ascended or descended from a lower form of being,’ then I think she would be under this statute liable for prosecution.’
In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term ‘teaching.’ Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.
III.
The antecedents of today’s decision are many and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom.
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
As early as 1872 [in Watson v. Jones], this Court said: ‘The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.’ This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command.
Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, ‘(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ As this Court said in Keyishian v. Board of Regents, the First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over the classroom.’ . . .
There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: ‘Neither (a State nor the Federal Government) can pass laws which aid one religion, aid all religions, or prefer one religion over another.’
At the following Term of Court, in McCollum v. Board of Education, the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using tax-supported property for religious purposes, thereby breaching the ‘wall of separation’ which, according to Jefferson, the First Amendment was intended to erect between church and state. While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc. v. Wilson, ‘the state has no legitimate interest in protecting any or all religions from views distasteful to them.’ The test was stated as follows in Abington School District v. Schempp: ‘(W)hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.’
These precedents inevitably determine the result in the present case. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees.
In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear that fundamentalist sectarian conviction was and is the law's reason for existence. Its antecedent, Tennessee’s ‘monkey law,’ candidly stated its purpose: to make it unlawful ‘to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.' Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee's reference to ‘the story of the Divine Creation of man’ as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.
Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.
The judgment of the Supreme Court of Arkansas is reversed.
Mr. Justice BLACK, concurring.
I am by no means sure that this case presents a genuinely justiciable case or controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional, was passed by the voters of Arkansas in 1928, we are informed that there has never been even a single attempt by the State to enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act presented by the State in this Court indicates that the State would make no attempt to enforce the law should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher alleging fear that the State might arouse from its lethargy and try to punish her has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then schoolage sons ‘be informed of all scientific theories and hypotheses.’ But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parent-intervenor's sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the textbook and no evidence that the intervenor's sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school or yet to take biology. Unfortunately, however, the State's languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy.
Notwithstanding my own doubts as to whether the case presents a justiciable controversy, the Court brushes aside these doubts and leaps headlong into the middle of the very broad problems involved in federal intrusion into state powers to decide what subjects and schoolbooks it may wish to use in teaching state pupils. While I hesitate to enter into the consideration and decision of such sensitive state-federal relationships, I reluctantly acquiesce. But, agreeing to consider this as a genuine case or controversy, I cannot agree to thrust the Federal Government’s long arm the least bit further into state school curriculums than decision of this particular case requires. . . .
The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment. I would not decide this case on such a sweeping ground for the following reasons, among others.
1. In the first place I find it difficult to agree with the Court's statement that ‘there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.’ It may be instead that the people's motive was merely that it would be best to remove this controversial subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the ‘motives' behind its passage were improper; it is simply too difficult to determine what those motives were.
2. A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an ‘anti-religious' doctrine to schoolchildren? The very cases cited by the Court as supporting its conclusion that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so too have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion.
3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school's managers do not want discussed. This Court has said that the rights of free speech ‘while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.’ I question whether it is absolutely certain, as the Court's opinion indicates, that ‘academic freedom’ permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.
Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible.
I would either strike down the Arkansas Act as too vague to enforce, or remand to the State Supreme Court for clarification of its holding and opinion.
Mr. Justice STEWART, concurring in the result.
The States are most assuredly free ‘to choose their own curriculums for their own schools.’ A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not.
It is one thing for a State to determine that ‘the subject of higher mathematics, or astronomy, or biology’ shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment, and made applicable to the States by the Fourteenth. . . .
Mozert v. Hawkins County Board of Education
826 F.2d 1058 (6th Cir. 1987)
Lively, Chief Judge
This case arose under the Free Exercise Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. The district court held that a public school requirement that all students in grades one through eight use a prescribed set of reading textbooks violated the constitutional rights of objecting parents and students. The district court entered an injunction which required the schools to excuse objecting students from participating in reading classes where the textbooks are used and awarded the plaintiff parents more than $50,000 damages.
I.
A.
Early in 1983 the Hawkins County, Tennessee Board of Education adopted the Holt, Rinehart and Winston basic reading series (the Holt series) for use in grades 1–8 of the public schools of the county.
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.
The plaintiff Vicki Frost is the mother of four children, three of whom were students in Hawkins County public schools in 1983. At the beginning of the 1983–84 school year Mrs. Frost read a story in a daughter’s sixth grade reader that involved mental telepathy. Mrs. Frost, who describes herself as a “born again Christian,” has a religious objection to any teaching about mental telepathy. Reading further, she found additional themes in the reader to which she had religious objections. After discussing her objections with other parents, Mrs. Frost talked with the principal of Church Hill Middle School and obtained an agreement for an alternative reading program for students whose parents objected to the assigned Holt reader. The students who elected the alternative program left their classrooms during the reading sessions and worked on assignments from an older textbook series in available office or library areas. Other students in two elementary schools were excused from reading the Holt books.
B.
In November 1983 the Hawkins County School Board voted unanimously to eliminate all alternative reading programs and require every student in the public schools to attend classes using the Holt series. Thereafter the plaintiff students refused to read the Holt series or attend reading classes where the series was being used. The children of several of the plaintiffs were suspended for brief periods for this refusal. Most of the plaintiff students were ultimately taught at home, or attended religious schools, or transferred to public schools outside Hawkins County. One student returned to school because his family was unable to afford alternate schooling. Even after the board’s order, two students were allowed some accommodation, in that the teacher either excused them from reading the Holt stories, or specifically noted on worksheets that the student was not required to believe the stories.
On December 2, 1983, the plaintiffs, consisting of seven families—14 parents and 17 children—filed this action pursuant to 42 U.S.C. § 1983. In their complaint the plaintiffs asserted that they have sincere religious beliefs which are contrary to the values taught or inculcated by the reading textbooks and that it is a violation of the religious beliefs and convictions of the plaintiff students to be required to read the books and a violation of the religious beliefs of the plaintiff parents to permit their children to read the books. The plaintiffs sought to hold the defendants liable because “forcing the student-plaintiffs to read school books which teach or inculcate values in violation of their religious beliefs and convictions is a clear violation of their rights to the free exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution.”
II.
A.
[The defendants acknowledged that the plaintiffs’ religious beliefs are sincere and that certain passages in the reading texts offend those beliefs. However, they did not agree with the plaintiffs’ claim that because they found the passages offense, the reading requirement burdened their constitutional right to the free exercise of their religion. Similarly, the plaintiffs agreed that there was a compelling state interest for the defendants to provide a public education to the children of Hawkins County. However, they did not agree that the compelling interest required all students in grades 1–8 of the Hawkins County public schools to use the Holt, Rinehart and Winston basal reading textbooks. These disputed matters were left to be resolved at trial.]
B.
The plaintiffs do not belong to a single church or denomination, but all consider themselves born again Christians. Mrs. Frost testified that the word of God as found in the Christian Bible “is the totality of my beliefs.” There was evidence that other members of their churches, and even their pastors, do not agree with their position in this case.
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. 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.
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. 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. 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.
Mrs. Frost described objectionable passages from other categories in much the same way. Describing evolution as a teaching that there is no God, she identified 24 passages that she considered to have evolution as a theme. 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. After describing her objection to passages that encourage children to make moral judgments about whether it is right or wrong to kill animals, the witness stated, “I thought they would be learning to read, to have good English and grammar, and to be able to do other subject work.” Asked by plaintiffs’ attorney to define her objection to the text books, Mrs. Frost replied:
Very basically, I object to the Holt, Rhinehart [sic] Winston series as a whole, what the message is as a whole. There are some contents which are objectionable by themselves, but my most withstanding [sic] objection would be to the series as a whole.
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, particularly biographical material about women who have been recognized for achievements outside their homes, and emphasis on one world or a planetary society. Both witnesses testified under cross-examination that the plaintiff parents objected to passages that expose their children to other forms of religion and to the feelings, attitudes and values of other students that contradict the plaintiffs’ religious views without a statement that the other views are incorrect and that the plaintiffs’ views are the correct ones.
III.
A.
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. This is precisely the way the superintendent of the Hawkins County schools framed the issue in an affidavit filed early in this litigation. In his affidavit the superintendent set forth the school system’s interest in a uniformity of reading texts. The affidavit also countered the claims of the plaintiffs that the schools were inculcating values and religious doctrines contrary to their religious beliefs, stating: “Without expressing an opinion as to the plaintiffs’ religious beliefs, I am of the opinion that plaintiffs misunderstand the fact that exposure to something does not constitute teaching, indoctrination, opposition or promotion of the things exposed. While it is true that these textbooks expose the student to varying values and religious backgrounds, neither the textbooks nor the teachers teach, indoctrinate, oppose or promote any particular value or religion.” That the district court accepted the issue as thus framed is clear from its reference to “exposure to the Holt series.”
It is also clear that exposure to objectionable material is what the plaintiffs objected to albeit they emphasize the repeated nature of the exposure. 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 and did not mention the teachers’ editions. 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.
At numerous places in her testimony Vicki Frost referred to various exercises and suggestions in the teachers’ manuals as support for her view that objectionable ideas were being inculcated as truth rather than being offered as examples of the variety of approaches possible to a particular question. However, the students were not required to read the teachers’ materials. While these materials suggested various ways of presenting the lessons, including “acting out” and round table discussions, there was no proof that any plaintiff student was ever called upon to say or do anything that required the student to affirm or deny a religious belief or to engage or refrain from engaging in any act either required or forbidden by the student’s religious convictions. Mrs. Frost seemed to assume that each teacher used every suggested exercise or teaching tool in the teachers’ editions. There was evidence that reading aloud and acting out the themes encountered in school lessons help young people learn. One of the teachers stated that students read some of the stories aloud. Proof that an objecting student was required to participate beyond reading and discussing assigned materials, or was disciplined for disputing assigned materials, might well implicate the Free Exercise Clause because the element of compulsion would then be present. But this was not the case either as pled or proved. The record leaves no doubt that the district court correctly viewed this case as one involving exposure to repugnant ideas and themes as presented by the Holt series.
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. While balanced textbooks are certainly desirable, there would be serious difficulties with trying to cure the omissions in the Holt series, as plaintiffs and their expert witnesses view the texts.
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 if the practices of other religions were described in detail, or if the philosophy was “profound” in that it expressed a world view that deeply undermined her religious beliefs, 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. Furthermore, the plaintiffs view every human situation and decision, whether related to personal belief and conduct or to public policy and programs, from a theological or religious perspective. 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 [in Epperson v. Arkansas] that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion.
The testimony of the plaintiffs’ expert witness, Dr. Vitz, illustrates the pitfalls of trying to achieve a balance of materials concerning religion in a reading course. He found “markedly little reference to religion, particularly Christianity, and also remarkably little to Judaism” in the Holt series. His solution would be to “beef up” the references to these two dominant religions in the United States. However, an adherent to a less widely professed religion might then object to the slighting of his or her faith. Balance in the treatment of religion lies in the eye of the beholder. Efforts to achieve the particular “balance” desired by any individual or group by the addition or deletion of religious material would lead to a forbidden entanglement of the public schools in religious matters, if done with the purpose or primary effect of advancing or inhibiting religion.
B.
In [previous cases finding a burden on free exercise], there was governmental compulsion to engage in conduct that violated the plaintiffs’ religious convictions. That element is missing in the present case. The requirement that students read the assigned materials and attend reading classes, in the absence of a showing that this participation entailed affirmation or denial of a religious belief, or performance or non-performance of a religious exercise or practice, does not place an unconstitutional burden on the students’ free exercise of religion.
C.
[The court then distinguished several cases, including Board of Education v. Barnette.] Barnette 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. All teachers and students were required to participate in the exercise and refusal to engage in the salute was considered an act of insubordination which could lead to expulsion and possible delinquency charges for being unlawfully absent. 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:
[W]e 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.
Further, explaining the basis of the decision, Justice Jackson wrote:
Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks.
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.” In Barnette the unconstitutional burden consisted of compulsion either to do an act that violated the plaintiff’s religious convictions or communicate an acceptance of a particular idea or affirm a belief. No similar compulsion exists in the present case.
It is clear that governmental compulsion either to do or refrain from doing an act forbidden or required by one’s religion, or to affirm or disavow a belief forbidden or required by one’s religion, is the evil prohibited by the Free Exercise Clause.
The plaintiffs appear to contend that the element of compulsion was supplied by the requirement of class participation in the reading exercises. As we have pointed out earlier, there is no proof in the record that any plaintiff student was required to engage in role play, make up magic chants, read aloud or engage in the activity of haggling. In fact, the Director of Education for the State of Tennessee testified that most teachers do not adhere to the suggestions in the teachers’ manuals and a teacher for 11 years in the Hawkins County system stated that she looks at the lesson plans in the teachers’ editions, but “does her own thing.” Being exposed to other students performing these acts might be offensive to the plaintiffs, but it does not constitute the compulsion described in the Supreme Court cases, where the objector was required to affirm or deny a religious belief or engage or refrain from engaging in a practice contrary to sincerely held religious beliefs.
D.
[The plaintiffs also rely upon Wisconsin v. Yoder] 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. However, Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule that exposure without compulsion to act, believe, affirm or deny creates an unconstitutional burden. The plaintiff parents in Yoder 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. Wisconsin school attendance law required them to cause their children to attend school until they reached the age of 16. 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 Supreme Court found from the record that—
[C]ompulsory school attendance to age 16 for Amish children carries with it a very real threat to undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.
As if to emphasize the narrowness of its holding because of the unique 300 year history of the Old Amish Order, the Court wrote:
It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.
This statement points up dramatically the difference between Yoder and the present case. 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. Tennessee law prohibits any state interference in the education process of church schools:
The state board of education and local boards of education are prohibited from regulating the selection of faculty or textbooks or the establishment of a curriculum in church-related schools.
Similarly the statute permitting home schooling by parents or other teachers prescribes nothing with respect to curriculum or the content of class work.
Yoder was decided in large part on the impossibility of reconciling the goals of public education with the religious requirement of the Amish that their children be prepared for life in a separated community. As the Court noted, the requirement of school attendance to age 16 posed a “very real threat of undermining the Amish community and religious practice as they exist today.” No such threat exists in the present case, and Tennessee’s school attendance laws offer several options to those parents who want their children to have the benefit of an education which prepares for life in the modern world without being exposed to ideas which offend their religious beliefs.
IV.
A.
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.” 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.” The critical reading approach furthers these goals. 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.
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. 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.
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. There is no evidence that any child in the Hawkins County schools was required to make such judgments. It was a goal of the school system to encourage this exercise, but nowhere was it shown that it was required. When asked to comment on a reading assignment, a student would be free to give the Biblical interpretation of the material or to interpret it from a different value base. The only conduct compelled by the defendants was reading and discussing the material in the Holt series, and hearing other students’ interpretations of those materials. This is the exposure to which the plaintiffs objected. What is absent from this case is the critical element of compulsion to affirm or deny a religious belief or to engage or refrain from engaging in a practice forbidden or required in the exercise of a plaintiff’s religion.
B.
In his concurring opinion [in McCollum v. Board of Education,] Justice Jackson emphasized that some compulsion to perform a religiously prohibited ritual or make a religiously prohibited affirmation is essential to a claim of infringement of the free exercise rights of students in public schools. Noting the large number of separate religious bodies existing in the United States, he wrote:
If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant law suits.
The Supreme Court has cautioned [in Epperson] that “[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.” When asked to “interpose,” courts must examine the record very carefully to make certain that a constitutional violation has occurred before they order changes in an educational program adopted by duly chosen local authorities. . . .
Since we have found none of the prohibited forms of governmental compulsion in this case, we conclude that the plaintiffs failed to establish the existence of an unconstitutional burden. Having determined that no burden was shown, we do not reach the issue of the defendants’ compelling interest in requiring a uniform reading series or the question, raised by the defendant, of whether awarding damages violated the Establishment Clause.
Boggs, Circuit Judge, concurring.
I concur with my colleagues that Hawkins County is not required by the Constitution to allow plaintiffs the latitude they seek in the educational program of these children. However, I reach that result on a somewhat different view of the facts and governing principles here. It seems that the court’s opinion rests first on the view that plaintiffs’ objection is to any exposure to contrary ideas, and that no one’s religious exercise can be burdened simply by compelled exposure. Second, the opinion rests on the view that no burden can exist here because plaintiffs were not compelled to engage in any conduct prohibited by, or refrain from any practice required by, their religious beliefs.
I do not believe these attempted distinctions will survive analysis. If the situation of these children is not a burden on their religious exercise, it must be because of a principle applicable to all religious objectors to public school curricula. Thus, I believe a deeper issue is present here, is implicitly decided in the court’s opinion, and should be addressed openly. The school board recognizes no limitation on its power to require any curriculum, no matter how offensive or one-sided, and to expel those who will not study it, so long as it does not violate the Establishment Clause. Our opinion today confirms that right, and I would like to make plain my reasons for taking that position.
Preliminarily, as my colleagues indicate, we make no judgment on the educational, political or social soundness of the school board’s decision to adopt this particular set of books and this general curricular approach. This is not a case about fundamentalist Christians or any particular set of beliefs. It is about the constitutional limits on the powers of school boards to prescribe a curriculum. For myself, I approach this case with a profound sense of sadness. At the classroom level, the pupils and teachers in these schools had in most cases reached a working accommodation. Only by the decisions of higher levels of political authority, and by more conceptualized presentations of the plaintiffs’ positions, have we reached the point where we must decide these harsh questions today. The school board faced what must have seemed a prickly and difficult group of parents, however dedicated to their children’s welfare.
As this case now reaches us, the school board rejects any effort to reach out and take in these children and their concerns. At oral argument, the board specifically argued that it was better for both plaintiffs’ children and other children that they not be in the public schools, despite the children’s obvious desire to obtain some of the benefits of public schooling. Though the board recognized that their allegedly compelling interests in shaping the education of Tennessee children could not be served at all if they drove the children from the school, the board felt it better not to be associated with any hybrid program.
Plaintiffs’ requests were unusual, but a variety of accommodations in fact were made, with no evidence whatsoever of bad effects. Given the masses of speculative testimony as to the hypothetical future evils of accommodating plaintiffs in any way, had there been any evidence of bad effects from what actually occurred, the board would surely have presented it. As we ultimately decide here, on the present state of constitutional law, the school board is indeed entitled to say, “my way or the highway.” But in my view the school board’s decision here is certainly not required by the Establishment Clause.
Returning to the treatment of plaintiffs’ free exercise claim, I believe this is a more difficult case than outlined in the court’s opinion. I disagree with the first proposition in the court’s opinion, that plaintiffs object to any exposure to any contrary idea. I do not believe we can define for plaintiffs their belief as to what is religiously forbidden to be so comprehensive, where both they and the district court have spoken to the contrary. A reasonable reading of plaintiffs’ testimony shows they object to the overall effect of the Holt series, not simply to any exposure to any idea opposing theirs. The district court specifically found that the objection was to exposure to the Holt series, not to any single story or idea.
Ultimately, I think we must address plaintiffs’ claims as they actually impact their lives: it is their belief that they should not take a course of study which, on balance, to them, denigrates and opposes their religion, and which the state is compelling them to take on pain of forfeiting all other benefits of public education.
Their view may seem silly or wrong-headed to some, but it is a sincerely held religious belief. By focusing narrowly on references that make plaintiffs appear so extreme that they could never be accommodated, the court simply leaves resolution of the underlying issues here to another case, when we have plaintiffs with a more sophisticated understanding of our own and Supreme Court precedent, and a more careful and articulate presentation of their own beliefs.
Under the court’s assessment of the facts, this is a most uninteresting case. It is not the test case sought, or feared, by either side. The court reviews the record and finds that the plaintiffs actually want a school system that affirmatively teaches the correctness of their religion, and prevents other students from mentioning contrary ideas. If that is indeed the case, then it can be very simply resolved. It would obviously violate the Establishment Clause for any school system to agree with such an extravagant view.
It should be noted and emphasized that if such is the holding, this decision is largely irrelevant to the national legal controversy over this case. The extent to which school systems may constitutionally require students to use educational materials that are objectionable, contrary to, or forbidden by their religious beliefs is a serious and important issue. The question of exactly how terms such as “contrary,” “objectionable,” and “forbidden,” are to be assessed in the context of religious beliefs is a subtle and interesting one. But this decision, as I understand it, addresses none of those questions. When a case arises with more sophisticated or cagey plaintiffs, or less skillful cross-examination, that true issue must be faced anew, with little guidance from this decision. Since these plaintiffs’ claims are rejected because they are read to be so extreme as obviously to violate the Establishment Clause, this case is no precedent for the more specific and narrowly drawn complaint that the district court and plaintiffs’ counsel (and, to me, the plaintiffs) thought the plaintiffs were making.
I find the court’s conclusion based on its reading of the record to be unsatisfactory on the factual basis of what was said at the trial. The trial strategies of the two sides were clear. The plaintiffs understood that the more thoroughgoing and extensive their objections, the less possible would it be to accommodate them within the bounds of the Constitution. Therefore, the plaintiffs repeatedly stated their objections in terms of the overall Holt series.
The defendants equally clearly sought to depict plaintiffs’ objections in the most constitutionally offensive terms. By skillful cross-examination, they did elicit on some occasions the statements on which the court relies. I believe these two lines of apparently contradictory testimony can be reconciled by recognizing the different meanings or usage of the same words or phrases such as “objectionable,” “want,” or “opposed to.” These words can cover a gamut from mild objection or desire to constitutional insistence. Something may be “objectionable,” in the sense that one would rather it did not happen, but it is something that must be endured. Conversely, it may be “objectionable” in the sense that it should not be permitted or one should not be required to endure it. Thus, I may find Muzak on buses, or in-flight movies, “objectionable,” but that’s life. However, one might find the display of pornographic material in either location “objectionable” to the point that a relatively captive audience legally should not be subjected to it.
Similarly, plaintiffs may “want” a school system tailored exactly to their religious beliefs (that is why many people choose religious education), but they very well know that that is constitutionally impermissible. They “want” a particular type of accommodation that they have sought in this lawsuit, and they believe that they are constitutionally entitled to that. Judge Hull, who sat through eight days of trial testimony over these very issues, came to the same conclusion I do, expressed it in the form of a finding, and should not be overturned unless that finding is clearly erroneous. In my reading of the testimony, the judge’s finding is not only not clearly erroneous, but it can only be reversed by a failure to recognize a distinction between the ideal education the parents want, and that level of accommodation and education which they believe is constitutionally required and which they “want” here. Thus, I believe we must take plaintiffs’ claims as they have stated them—that they desire the accommodation of an opt-out, or alternative reading books, and no more. That is all they have ever asked for in their pleadings, in the arguments at trial and in appellate briefing and argument.
I also disagree with the court’s view that there can be no burden here because there is no requirement of conduct contrary to religious belief. That view both slights plaintiffs’ honest beliefs that studying the full Holt series would be conduct contrary to their religion, and overlooks other Supreme Court Free Exercise cases which view “conduct” that may offend religious exercise at least as broadly as do plaintiffs. . . .
Here, plaintiffs have drawn their line as to what required school activities, what courses of study, do and do not offend their beliefs to the point of prohibition. I would hold that if they are forced over that line, they are “engaging in conduct” forbidden by their religion. The court’s excellent summary of its holding on this point appears to concede that what plaintiffs were doing in school was conduct, but that there “was no evidence that the conduct required of the students was forbidden by their religion.” I cannot agree. The plaintiffs provided voluminous testimony of the conflict (in their view) between reading the Holt readers and their religious beliefs, including extensive Scriptural references. The district court found that “plaintiffs’ religious beliefs compel them to refrain from exposure to the Holt series.” I would think it could hardly be clearer that they believe their religion commands, not merely suggests, their course of action.
If plaintiffs did not use the exact words “reading these books is forbidden by our religion,” they certainly seemed to me to make that point clearly. The court’s summary also re-emphasizes my point, that the importance of this holding would be greatly diminished in a future case where plaintiffs can articulate the right set of words.
Thus, I believe the plaintiffs’ objection is to the Holt series as a whole, and that being forced to study the books is “conduct” contrary to their beliefs. In the absence of a narrower basis that can withstand scrutiny, we must address the hard issues presented by this case: (1) whether compelling this conduct forbidden by plaintiffs’ beliefs places a burden on their free exercise of their religion, in the sense of earlier Supreme Court holdings; and (2) whether within the context of the public schools, teaching material which offends a person’s religious beliefs, but does not violate the Establishment Clause, can be a burden on free exercise.
Determining whether the school board’s action places a substantial burden on the plaintiff’s free exercise of their religion requires a determination of the scope of the religious beliefs or practices protected by the Free Exercise Clause. Although the Supreme Court has shied away from attempting to define religion, the past forty years has witnessed an expansion of the court’s understanding of religious belief. The concept of religion has shifted from a fairly narrow traditional theism, to a broader concept providing protection for the views of unorthodox and nontheistic faiths. The plaintiffs here have no problem fitting within any of the Court’s various definitions of religion, as no one contends that their basic beliefs are not religious.
However, determining that plaintiffs’ beliefs are religious does not automatically mean that all practices or observances springing from those beliefs are entitled to the same amount of protection under the Free Exercise Clause. At one point, the Court made a distinction [in Reynolds v. United States] between religious beliefs and actions, indicating that the government could never interfere with belief or opinion, but could always regulate practices. This distinction did not hold, as the Court has provided protection for such religious conduct as soliciting contributions, Cantwell v. Connecticut, and of course, observing one’s chosen Sabbath, Sherbert v. Verner, or refusing to work on armaments.
There remains the question of which religious conduct may not be burdened (and thus must be accommodated unless a compelling interest justifies it), by government action. One theory would draw the line between actions that are compelled or dictated by religious belief and those that are merely motivated or influenced by these beliefs. “Not all actions are necessarily required (duties) or forbidden (sins); religion addresses what is ‘better’ as well as what is ‘good.’”
For me, the key fact is that the Court has almost never interfered with the prerogative of school boards to set curricula, based on free exercise claims. West Virginia State Board of Education v. Barnette may be the only case, and even there a specific affirmation was required, implicating a non-religious First Amendment basis, as well.
From a common sense view of the word “burden,” Sherbert and Thomas are very strong cases for plaintiffs. In any sensible meaning of a burden, the burden in our case is greater than in Thomas or Sherbert. Both of these cases involved workers who wanted unemployment compensation because they gave up jobs based on their religious beliefs. Their actual losses that the Court made good, the actual burden that the Court lifted, was one or two thousand dollars at most. Although this amount of money was certainly important to them, the Court did not give them their jobs back. The Court did not guarantee they would get any future job. It only provided them access to a sum of money equally with those who quit work for other “good cause” reasons.
Here, the burden is many years of education, being required to study books that, in plaintiffs’ view, systematically undervalue, contradict and ignore their religion. I trust it is not simply because I am chronologically somewhat closer than my colleagues to the status of the students involved here that I interpret the choice forced upon the plaintiffs here as a “burden.”
However, constitutional adjudication, especially for a lower court, is not simply a matter of common sense use of words. We must determine whether the common sense burden on plaintiffs’ religious belief is, in the context of a public school curriculum, a constitutional “burden” on their religious beliefs.
I do not support an extension by this court of the principles of Sherbert and Thomas to cover this case, even though there is a much stronger economic compulsion exercised by public schooling than by any unemployment compensation system. I think the constitutional basis for those cases is sufficiently thin that they should not be extended blindly. The exercise there was of a narrow sort, and did not explicitly implicate the purposes or methods of the program itself.
Running a public school system of today’s magnitude is quite a different proposition. A constitutional challenge to the content of instruction (as opposed to participation in ritual such as magic chants, or prayers) is a challenge to the notion of a politically-controlled school system. Imposing on school boards the delicate task of satisfying the “compelling interest” test to justify failure to accommodate pupils is a significant step. It is a substantial imposition on the schools to require them to justify each instance of not dealing with students’ individual, religiously compelled, objections (as opposed to permitting a local, rough and ready, adjustment), and I do not see that the Supreme Court has authorized us to make such a requirement.
Our interpretation of these key phrases of our Bill of Rights in the school context is certainly complicated by the fact that the drafters of the Bill of Rights never contemplated a school system that would be the most pervasive benefit of citizenship for many, yet which would be very difficult to avoid.
The average public expenditure for a pupil in Hawkins County is about 20% of the income of the average household there. Even the modest tuition in the religious schools which some plaintiffs attended here amounted to about a doubling of the state and local tax burden of the average resident. Had the Founders recognized the possibility of state intervention of this magnitude, they might have written differently. However, it is difficult for me to see that the words “free exercise of religion,” at the adoption of the Bill of Rights, implied a freedom from state teaching, even of offensive material, when some alternative was legally permissible.
Therefore, I reluctantly conclude that under the Supreme Court’s decisions as we have them, school boards may set curricula bounded only by the Establishment Clause, as the state contends. Thus, contrary to the analogy plaintiffs suggest, pupils may indeed be expelled if they will not read from the King James Bible, so long as it is only used as literature, and not taught as religious truth. Contrary to the position of amicus American Jewish Committee, Jewish students may not assert a burden on their religion if their reading materials overwhelmingly provide a negative view of Jews or factual or historical issues important to Jews, so long as such materials do not assert any propositions as religious truth, or do not otherwise violate the Establishment Clause.
The court’s opinion well illustrates the distinction between the goals and values that states may try to impose and those they cannot, by distinguishing between teaching civil toleration of other religions, and teaching religious toleration of other religions. It is an accepted part of public schools to teach the former, and plaintiffs do not quarrel with that. Thus, the state may teach that all religions have the same civil and political rights, and must be dealt with civilly in civil society. The state itself concedes it may not do the latter. It may not teach as truth that the religions of others are just as correct as religions as plaintiffs’ own.
It is a more difficult question when, as here, the state presents materials that plaintiffs sincerely believe preach religious toleration of religions by consistent omission of plaintiffs’ religion and favorable presentation of opposing views. Our holding requires plaintiffs to put up with what they perceive as an unbalanced public school curriculum, so long as the curriculum does not violate the Establishment Clause. Every other sect or type of religious belief is bound by the same requirement. The rule here is not a rule just for fundamentalist dissenters, for surely the rule cannot be that when the school authorities disagree with non-fundamentalist dissenters, the school loses, and when the school authorities disagree with fundamentalists, the school wins. Rather, unless the Supreme Court chooses to extend the principle of Thomas to schools, the democratic principle must prevail.
Schools are very important, and some public schools offend some people deeply. That is one major reason private schools of many denominations—fundamentalist, Lutheran, Jewish—are growing. But a response to that phenomenon is a political decision for the schools to make. I believe that such a significant change in school law and expansion in the religious liberties of pupils and parents should come only from Supreme Court itself, and not simply from our interpretation. It may well be that we would have a better society if children and parents were not put to the hard choice posed by this case. But our mandate is limited to carrying out the commands of the Constitution and the Supreme Court.
I therefore concur in the result and reverse the judgment of the District Court.
How Christian Were the Founders?
Russell Shorto
The New York Times Magazine, Feb. 11, 2010
Last month, a week before the Senate seat of the liberal icon Edward M. Kennedy fell into Republican hands, his legacy suffered another blow that was perhaps just as damaging, if less noticed. It happened during what has become an annual spectacle in the culture wars.
Over two days, more than a hundred people—Christians, Jews, housewives, naval officers, professors; people outfitted in everything from business suits to military fatigues to turbans to baseball caps—streamed through the halls of the William B. Travis Building in Austin, Tex., waiting for a chance to stand before the semicircle of 15 high-backed chairs whose occupants made up the Texas State Board of Education. Each petitioner had three minutes to say his or her piece.
“Please keep César Chávez” was the message of an elderly Hispanic man with a floppy gray mustache.
“Sikhism is the fifth-largest religion in the world and should be included in the curriculum,” a woman declared.
Following the appeals from the public, the members of what is the most influential state board of education in the country, and one of the most politically conservative, submitted their own proposed changes to the new social-studies curriculum guidelines, whose adoption was the subject of all the attention — guidelines that will affect students around the country, from kindergarten to 12th grade, for the next 10 years. Gail Lowe—who publishes a twice-a-week newspaper when she is not grappling with divisive education issues—is the official chairwoman, but the meeting was dominated by another member. Don McLeroy, a small, vigorous man with a shiny pate and bristling mustache, proposed amendment after amendment on social issues to the document that teams of professional educators had drawn up over 12 months, in what would have to be described as a single-handed display of archconservative political strong-arming.
McLeroy moved that Margaret Sanger, the birth-control pioneer, be included because she “and her followers promoted eugenics,” that language be inserted about Ronald Reagan’s “leadership in restoring national confidence” following Jimmy Carter’s presidency and that students be instructed to “describe the causes and key organizations and individuals of the conservative resurgence of the 1980s and 1990s, including Phyllis Schlafly, the Contract With America, the Heritage Foundation, the Moral Majority and the National Rifle Association.” The injection of partisan politics into education went so far that at one point another Republican board member burst out in seemingly embarrassed exasperation, “Guys, you’re rewriting history now!” Nevertheless, most of McLeroy’s proposed amendments passed by a show of hands.
Finally, the board considered an amendment to require students to evaluate the contributions of significant Americans. The names proposed included Thurgood Marshall, Billy Graham, Newt Gingrich, William F. Buckley Jr., Hillary Rodham Clinton and Edward Kennedy. All passed muster except Kennedy, who was voted down.
This is how history is made — or rather, how the hue and cry of the present and near past gets lodged into the long-term cultural memory or else is allowed to quietly fade into an inaudible whisper. Public education has always been a battleground between cultural forces; one reason that Texas’ school-board members find themselves at the very center of the battlefield is, not surprisingly, money. The state’s $22 billion education fund is among the largest educational endowments in the country. Texas uses some of that money to buy or distribute a staggering 48 million textbooks annually—which rather strongly inclines educational publishers to tailor their products to fit the standards dictated by the Lone Star State. California is the largest textbook market, but besides being bankrupt, it tends to be so specific about what kinds of information its students should learn that few other states follow its lead. Texas, on the other hand, was one of the first states to adopt statewide curriculum guidelines, back in 1998, and the guidelines it came up with (which are referred to as TEKS—pronounced “teaks”—for Texas Essential Knowledge and Skills) were clear, broad and inclusive enough that many other states used them as a model in devising their own. And while technology is changing things, textbooks—printed or online—are still the backbone of education.
The cultural roots of the Texas showdown may be said to date to the late 1980s, when, in the wake of his failed presidential effort, the Rev. Pat Robertson founded the Christian Coalition partly on the logic that conservative Christians should focus their energies at the grass-roots level. One strategy was to put candidates forward for state and local school-board elections—Robertson’s protégé, Ralph Reed, once said, “I would rather have a thousand school-board members than one president and no school-board members”—and Texas was a beachhead. Since the election of two Christian conservatives in 2006, there are now seven on the Texas state board who are quite open about the fact that they vote in concert to advance a Christian agenda. “They do vote as a bloc,” Pat Hardy, a board member who considers herself a conservative Republican but who stands apart from the Christian faction, told me. “They work consciously to pull one more vote in with them on an issue so they’ll have a majority.”
This year’s social-studies review has drawn the most attention for the battles over what names should be included in the roll call of history. But while ignoring Kennedy and upgrading Gingrich are significant moves, something more fundamental is on the agenda. The one thing that underlies the entire program of the nation’s Christian conservative activists is, naturally, religion. But it isn’t merely the case that their Christian orientation shapes their opinions on gay marriage, abortion and government spending. More elementally, they hold that the United States was founded by devout Christians and according to biblical precepts. This belief provides what they consider not only a theological but also, ultimately, a judicial grounding to their positions on social questions. When they proclaim that the United States is a “Christian nation,” they are not referring to the percentage of the population that ticks a certain box in a survey or census but to the country’s roots and the intent of the founders.
The Christian “truth” about America’s founding has long been taught in Christian schools, but not beyond. Recently, however—perhaps out of ire at what they see as an aggressive, secular, liberal agenda in Washington and perhaps also because they sense an opening in the battle, a sudden weakness in the lines of the secularists—some activists decided that the time was right to try to reshape the history that children in public schools study. Succeeding at this would help them toward their ultimate goal of reshaping American society. As Cynthia Dunbar, another Christian activist on the Texas board, put it, “The philosophy of the classroom in one generation will be the philosophy of the government in the next.”
I met Don McLeroy last November in a dental office—that is to say, his dental office—in a professional complex in the Brazos Valley city of Bryan, not far from the sprawling campus of Texas A&M University. The buzz of his hygienist at work sounded through the thin wall separating his office from the rest of the suite. McLeroy makes no bones about the fact that his professional qualifications have nothing to do with education. “I’m a dentist, not a historian,” he said. “But I’m fascinated by history, so I’ve read a lot.”
Indeed, dentistry is only a job for McLeroy; his real passions are his faith and the state board of education. He has been a member of the board since 1999 and served as its chairman from 2007 until he was demoted from that role by the State Senate last May because of concerns over his religious views. Until now those views have stood McLeroy in good stead with the constituents of his district, which meanders from Houston to Dallas and beyond, but he is currently in a heated re-election battle in the Republican primary, which takes place March 2.
McLeroy is a robust, cheerful and inexorable man, whose personality is perhaps typified by the framed letter T on the wall of his office, which he earned as a “yell leader” (Texas A&M nomenclature for cheerleader) in his undergraduate days in the late 1960s. “I consider myself a Christian fundamentalist,” he announced almost as soon as we sat down. He also identifies himself as a young-earth creationist who believes that the earth was created in six days, as the book of Genesis has it, less than 10,000 years ago. He went on to explain how his Christian perspective both governs his work on the state board and guides him in the current effort to adjust American-history textbooks to highlight the role of Christianity. “Textbooks are mostly the product of the liberal establishment, and they’re written with the idea that our religion and our liberty are in conflict,” he said. “But Christianity has had a deep impact on our system. The men who wrote the Constitution were Christians who knew the Bible. Our idea of individual rights comes from the Bible. The Western development of the free-market system owes a lot to biblical principles.”
For McLeroy, separation of church and state is a myth perpetrated by secular liberals. “There are two basic facts about man,” he said. “He was created in the image of God, and he is fallen. You can’t appreciate the founding of our country without realizing that the founders understood that. For our kids to not know our history, that could kill a society. That’s why to me this is a huge thing.”
“This”—the Texas board’s moves to bring Jesus into American history—has drawn anger in places far removed from the board members’ constituencies. (Samples of recent blog headlines on the topic: “Don McLeroy Wants Your Children to Be Stupid” and “Can We Please Mess With Texas?”) The issue of Texas’ influence is a touchy one in education circles. With some parents and educators elsewhere leery of a right-wing fifth column invading their schools, people in the multibillion textbook industry try to play down the state’s sway. “It’s not a given that Texas’ curriculum translates into other states,” says Jay Diskey, executive director of the school division for the Association of American Publishers, which represents most of the major companies. But Tom Barber, who worked as the head of social studies at the three biggest textbook publishers before running his own editorial company, says, “Texas was and still is the most important and most influential state in the country.” And James Kracht, a professor at Texas A&M’s college of education and a longtime player in the state’s textbook process, told me flatly, “Texas governs 46 or 47 states.”
Every year for the last few years, Texas has put one subject area in its TEKS up for revision. Each year has brought a different controversy, and Don McLeroy has been at the center of most of them. Last year, in its science re-evaluation, the board lunged into the evolution/creationism/intelligent-design debate. The conservative Christian bloc wanted to require science teachers to cover the “strengths and weaknesses” of the theory of evolution, language they used in the past as a tool to weaken the rationale for teaching evolution. The battle made headlines across the country; ultimately, the seven Christian conservatives were unable to pull another vote their way on that specific point, but the finished document nonetheless allows inroads to creationism.
The fallout from that fight cost McLeroy his position as chairman. “It’s the 21st century, and the rest of the known world accepts the teaching of evolution as science and creationism as religion, yet we continue to have this debate here,” Kathy Miller, president of the Texas Freedom Network, a watchdog group, says. “So the eyes of the nation were on this body, and people saw how ridiculous they appeared.” The State Legislature felt the ridicule. “You have a point of view, and you’re using this bully pulpit to take the rest of the state there,” Eliot Shapleigh, a Democratic state senator, admonished McLeroy during the hearing that led to his ouster. McLeroy remains unbowed and talked cheerfully to me about how, confronted with a statement supporting the validity of evolution that was signed by 800 scientists, he had proudly been able to “stand up to the experts.”
The idea behind standing up to experts is that the scientific establishment has been withholding information from the public that would show flaws in the theory of evolution and that it is guilty of what McLeroy called an “intentional neglect of other scientific possibilities.” Similarly, the Christian bloc’s notion this year to bring Christianity into the coverage of American history is not, from their perspective, revisionism but rather an uncovering of truths that have been suppressed. “I don’t know that what we’re doing is redefining the role of religion in America,” says Gail Lowe, who became chairwoman of the board after McLeroy was ousted and who is one of the seven conservative Christians. “Many of us recognize that Judeo-Christian principles were the basis of our country and that many of our founding documents had a basis in Scripture. As we try to promote a better understanding of the Constitution, federalism, the separation of the branches of government, the basic rights guaranteed in the Bill of Rights, I think it will become evident to students that the founders had a religious motivation.”
Plenty of people disagree with this characterization of the founders, including some who are close to the process in Texas. “I think the evidence indicates that the founding fathers did not intend this to be a Christian nation,” says James Kracht, who served as an expert adviser to the board in the textbook-review process. “They definitely believed in some form of separation of church and state.”
There is, however, one slightly awkward issue for hard-core secularists who would combat what they see as a Christian whitewashing of American history: the Christian activists have a certain amount of history on their side.
In 1801, a group of Baptist ministers in Danbury, Conn., wrote a letter to the new president, Thomas Jefferson, congratulating him on his victory. They also had a favor to ask. Baptists were a minority group, and they felt insecure. In the colonial period, there were two major Christian factions, both of which derived from England. The Congregationalists, in New England, had evolved from the Puritan settlers, and in the South and middle colonies, the Anglicans came from the Church of England. Nine colonies developed state churches, which were supported financially by the colonial governments and whose power was woven in with that of the governments. Other Christians—Lutherans, Baptists, Quakers—and, of course, those of other faiths were made unwelcome, if not persecuted outright.
There was a religious element to the American Revolution, which was so pronounced that you could just as well view the event in religious as in political terms. Many of the founders, especially the Southerners, were rebelling simultaneously against state-church oppression and English rule. The Connecticut Baptists saw Jefferson — an anti-Federalist who was bitterly opposed to the idea of establishment churches — as a friend. “Our constitution of government,” they wrote, “is not specific” with regard to a guarantee of religious freedoms that would protect them. Might the president offer some thoughts that, “like the radiant beams of the sun,” would shed light on the intent of the framers? In his reply, Jefferson said it was not the place of the president to involve himself in religion, and he expressed his belief that the First Amendment’s clauses—that the government must not establish a state religion (the so-called establishment clause) but also that it must ensure the free exercise of religion (what became known as the free-exercise clause)—meant, as far as he was concerned, that there was “a wall of separation between Church & State.”
This little episode, culminating in the famous “wall of separation” metaphor, highlights a number of points about teaching religion in American history. For one, it suggests—as the Christian activists maintain—how thoroughly the colonies were shot through with religion and how basic religion was to the cause of the revolutionaries. The period in the early- to mid-1700s, called the Great Awakening, in which populist evangelical preachers challenged the major denominations, is considered a spark for the Revolution. And if religion influenced democracy then, in the Second Great Awakening, decades later, the democratic fervor of the Revolution spread through the two mainline denominations and resulted in a massive growth of the sort of populist churches that typify American Christianity to this day.
Christian activists argue that American-history textbooks basically ignore religion—to the point that they distort history outright—and mainline religious historians tend to agree with them on this. “In American history, religion is all over the place, and wherever it appears, you should tell the story and do it appropriately,” says Martin Marty, emeritus professor at the University of Chicago, past president of the American Academy of Religion and the American Society of Church History and perhaps the unofficial dean of American religious historians. “The goal should be natural inclusion. You couldn’t tell the story of the Pilgrims or the Puritans or the Dutch in New York without religion.” Though conservatives would argue otherwise, James Kracht said the absence of religion is not part of a secularist agenda: “I don’t think religion has been purposely taken out of U.S. history, but I do think textbook companies have been cautious in discussing religious beliefs and possibly getting in trouble with some groups.”
Some conservatives claim that earlier generations of textbooks were frank in promoting America as a Christian nation. It might be more accurate to say that textbooks of previous eras portrayed leaders as generally noble, with strong personal narratives, undergirded by faith and patriotism. As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. Many others do as well, of course. But the Christians have an answer.
Their answer is rather specific. Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission. In the guidelines—which will be subjected to further amendments in March and then in May—eighth-grade history students are asked to “analyze the importance of the Mayflower Compact, the Fundamental Orders of Connecticut and the Virginia House of Burgesses to the growth of representative government.” Such early colonial texts have long been included in survey courses, but why focus on these in particular? The Fundamental Orders of Connecticut declare that the state was founded “to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus.” The language in the Mayflower Compact—a document that McLeroy and several others involved in the Texas process are especially fond of—describes the Pilgrims’ journey as being “for the Glory of God and advancement of the Christian Faith” and thus instills the idea that America was founded as a project for the spread of Christianity. In a book she wrote two years ago, Cynthia Dunbar, a board member, could not have been more explicit about this being the reason for the Mayflower Compact’s inclusion in textbooks; she quoted the document and then said, “This is undeniably our past, and it clearly delineates us as a nation intended to be emphatically Christian.”
In the new guidelines, students taking classes in U.S. government are asked to identify traditions that informed America’s founding, “including Judeo-Christian (especially biblical law),” and to “identify the individuals whose principles of law and government institutions informed the American founding documents,” among whom they include Moses. The idea that the Bible and Mosaic law provided foundations for American law has taken root in Christian teaching about American history. So when Steven K. Green, director of the Center for Religion, Law and Democracy at Willamette University in Salem, Ore., testified at the board meeting last month in opposition to the board’s approach to bringing religion into history, warning that the Supreme Court has forbidden public schools from “seeking to impress upon students the importance of particular religious values through the curriculum,” and in the process said that the founders “did not draw on Mosaic law, as is mentioned in the standards,” several of the board members seemed dumbstruck. Don McLeroy insisted it was a legitimate claim, since the Enlightenment took place in Europe, in a Christian context. Green countered that the Enlightenment had in fact developed in opposition to reliance on biblical law and said he had done a lengthy study in search of American court cases that referenced Mosaic law. “The record is basically bereft,” he said. Nevertheless, biblical law and Moses remain in the TEKS.
The process in Texas required that writing teams, made up mostly of teachers, do the actual work of revising the curriculum, with the aid of experts who were appointed by the board. Two of the six experts the board chose are well-known advocates for conservative Christian causes. One of them, the Rev. Peter Marshall, says on the Web site of his organization, Peter Marshall Ministries, that his work is “dedicated to helping to restore America to its Bible-based foundations through preaching, teaching and writing on America’s Christian heritage and on Christian discipleship and revival.”
“The guidelines in Texas were seriously deficient in bringing out the role of the Christian faith in the founding of America,” Marshall told me. In a document he prepared for the team that was writing the new guidelines, he urged that new textbooks mold children’s impressions of the founders in particular ways: “The Founding Fathers’ biblical worldview taught them that human beings were by nature self-centered, so they believed that the supernatural influence of the Spirit of God was needed to free us from ourselves so that we can care for our neighbors.”
Marshall also proposed that children be taught that the separation-of-powers notion is “rooted in the Founding Fathers’ clear understanding of the sinfulness of man,” so that it was not safe for one person to exercise unlimited power, and that “the discovery, settling and founding of the colonies happened because of the biblical worldviews of those involved.” Marshall recommended that textbooks present America’s founding and history in terms of motivational stories on themes like the Pilgrims’ zeal to bring the Gospel of Jesus Christ to the natives.
One recurring theme during the process of revising the social-studies guidelines was the desire of the board to stress the concept of American exceptionalism, and the Christian bloc has repeatedly emphasized that Christianity should be portrayed as the driving force behind what makes America great. Peter Marshall is himself the author of a series of books that recount American history with a strong Christian focus and that have been staples in Christian schools since the first one was published in 1977. (He told me that they have sold more than a million copies.) In these history books, he employs a decidedly unhistorical tone in which the guiding hand of Providence shapes America’s story, starting with the voyage of Christopher Columbus. “Columbus’s heart belonged to God,” he assures his readers, and he notes that a particular event in the explorer’s life “marked the turning point of God’s plan to use Columbus to raise the curtain on His new Promised Land.”
The other nonacademic expert, David Barton, is the nationally known leader of WallBuilders, which describes itself as dedicated to “presenting America’s forgotten history and heroes, with an emphasis on our moral, religious and constitutional heritage.” Barton has written and lectured on the First Amendment and against separation of church and state. He is a controversial figure who has argued that the U.S. income tax and the capital-gains tax should be abolished because they violate Scripture (for the Bible says, in Barton’s reading, “the more profit you make the more you are rewarded”) and who pushes a Christianity-first rhetoric. When the U.S. Senate invited a Hindu leader to open a 2007 session with a prayer, he objected, saying: “In Hindu [sic], you have not one God, but many, many, many, many, many gods. And certainly that was never in the minds of those who did the Constitution, did the Declaration when they talked about Creator.”
In his recommendations to the Texas school board, Barton wrote that students should be taught the following principles which, in his reading, derive directly from the Declaration of Independence: “1. There is a fixed moral law derived from God and nature. 2. There is a Creator. 3. The Creator gives to man certain unalienable rights. 4. Government exists primarily to protect God-given rights to every individual. 5. Below God-given rights and moral laws, government is directed by the consent of the governed.”
A third expert, Daniel L. Dreisbach, a professor of justice, law and society at American University who has written extensively on First Amendment issues, stressed, in his recommendations to the guideline writers about how to frame the revolutionary period for students, that the founders were overwhelmingly Christian; that the deistic tendencies of a few—like Jefferson—were an anomaly; and that most Americans in the era were not just Christians but that “98 percent or more of Americans of European descent identified with Protestantism.”
If the fight between the “Christian nation” advocates and mainstream thinkers could be focused onto a single element, it would be the “wall of separation” phrase. Christian thinkers like to point out that it does not appear in the Constitution, nor in any other legal document—letters that presidents write to their supporters are not legal decrees. Besides which, after the phrase left Jefferson’s pen it more or less disappeared for a century and a half—until Justice Hugo Black of the Supreme Court dug it out of history’s dustbin in 1947. It then slowly worked its way into the American lexicon and American life, helping to subtly mold the way we think about religion in society. To conservative Christians, there is no separation of church and state, and there never was. The concept, they say, is a modern secular fiction. There is no legal justification, therefore, for disallowing crucifixes in government buildings or school prayer.
David Barton reads the “church and state” letter to mean that Jefferson “believed, along with the other founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination.” Barton goes on to claim, “ ‘Separation of church and state’ currently means almost exactly the opposite of what it originally meant.” That is to say, the founders were all Christians who conceived of a nation of Christians, and the purpose of the First Amendment was merely to ensure that no single Christian denomination be elevated to the role of state church.
Mainstream scholars disagree, sometimes vehemently. Randall Balmer, a professor of American religious history at Barnard College and writer of the documentary “Crusade: The Life of Billy Graham,” told me: “David Barton has been out there spreading this lie, frankly, that the founders intended America to be a Christian nation. He’s been very effective. But the logic is utterly screwy. He says the phrase ‘separation of church and state’ is not in the Constitution. He’s right about that. But to make that argument work you would have to argue that the phrase is not an accurate summation of the First Amendment. And Thomas Jefferson, who penned it, thought it was.” (David Barton declined to be interviewed for this article.) In his testimony in Austin, Steven Green was challenged by a board member with the fact that the phrase does not appear in the Constitution. In response, Green pointed out that many constitutional concepts—like judicial review and separation of powers—are not found verbatim in the Constitution.
In what amounts to an in-between perspective, Daniel Dreisbach—who wrote a book called “Thomas Jefferson and the Wall of Separation Between Church and State”—argues that the phrase “wall of separation” has been misapplied in recent decades to unfairly restrict religion from entering the public sphere. Martin Marty, the University of Chicago emeritus professor, agrees. “I think ‘wall’ is too heavy a metaphor,” Marty says. “There’s a trend now away from it, and I go along with that. In textbooks, we’re moving away from an unthinking secularity.” The public seems to agree. Polls on some specific church-state issues—government financing for faith-based organizations and voluntary prayer in public schools—consistently show majorities in favor of those positions.
Then too, the “Christian nation” position tries to trump the whole debate about separation of church and state by portraying the era of the nation’s founding as awash in Christianity. David Barton and others pepper their arguments with quotations, like one in which John Adams, in a letter to Jefferson, refers to American independence as having been achieved on “the general Principles of Christianity.” But others find just as many instances in which one or another of the founders seems clearly wary of religion.
In fact, the founders were rooted in Christianity—they were inheritors of the entire European Christian tradition—and at the same time they were steeped in an Enlightenment rationalism that was, if not opposed to religion, determined to establish separate spheres for faith and reason. “I don’t think the founders would have said they were applying Christian principles to government,” says Richard Brookhiser, the conservative columnist and author of books on Alexander Hamilton, Gouverneur Morris and George Washington. “What they said was ‘the laws of nature and nature’s God.’ They didn’t say, ‘We put our faith in Jesus Christ.’ ” Martin Marty says: “They had to invent a new, broad way. Washington, in his writings, makes scores of different references to God, but not one is biblical. He talks instead about a ‘Grand Architect,’ deliberately avoiding the Christian terms, because it had to be a religious language that was accessible to all people.”
Or, as Brookhiser rather succinctly summarizes the point: “The founders were not as Christian as those people would like them to be, though they weren’t as secularist as Christopher Hitchens would like them to be.”
The town of Lynchburg, Va., was founded in 1786 at the site of a ferry crossing on what would later be called the James River. During the Civil War, it was a Confederate supply post, and in 1864 it was the site of one of the last Confederate victories. In 1933, Jerry Falwell was born in Lynchburg, the son of a sometime bootlegger. In 1971—in an era of pot smoking and war protests—the Rev. Jerry Falwell inaugurated Liberty University on one of the city’s seven hills. It was to be a training ground for Christians and a bulwark against moral relativism. In 2004, three years before his death, Falwell completed another dream by founding the Liberty University School of Law, whose objective, in the words of the university’s current chancellor, Jerry Falwell Jr., is “to transform legislatures, courts, commerce and civil government at all levels.”
I visited the law-school building in late fall, with the remnants of Hurricane Ida turning the Blue Ridge Mountains skyline into a series of smudges. The building’s crisp, almost militaristic atmosphere bespeaks a seriousness of purpose; and the fact that it houses, as one of its training facilities, the only full-scale replica of the U.S. Supreme Court chamber points to the school’s ambitions.
I had come to sit in on a guest lecture by Cynthia Dunbar, an assistant law professor who commutes to Lynchburg once a week from her home in Richmond, Tex., where she is a practicing lawyer as well as a member of the Texas board of education. Her presence in both worlds—public schools and the courts—suggests the connection between them that Christian activists would like to deepen. The First Amendment class for third-year law students that I watched Dunbar lead neatly merged the two components of the school’s program: “lawyering skills” and “the integration of a Christian worldview.”
Dunbar began the lecture by discussing a national day of thanksgiving that Gen. George Washington called for after the defeat of the British at Saratoga in 1777—showing, in her reckoning, a religious base in the thinking of the country’s founders. In developing a line of legal reasoning that the future lawyers in her class might use, she wove her way to two Supreme Court cases in the 1960s, in both of which the court ruled that prayer in public schools was unconstitutional. A student questioned the relevance of the 1777 event to the court rulings, because in 1777 the country did not yet have a Constitution. “And what did we have at that time?” Dunbar asked. Answer: “The Declaration of Independence.” She then discussed a legal practice called “incorporation by reference.” “When you have in one legal document reference to another, it pulls them together, so that they can’t be viewed as separate and distinct,” she said. “So you cannot read the Constitution distinct from the Declaration.” And the Declaration famously refers to a Creator and grounds itself in “the Laws of Nature and of Nature’s God.” Therefore, she said, the religiosity of the founders is not only established and rooted in a foundational document but linked to the Constitution. From there she moved to “judicial construction and how you should go forward with that,” i.e., how these soon-to-be lawyers might work to overturn rulings like that against prayer in schools by using the founding documents.
Jay Sekulow, chief counsel of the American Center for Law and Justice, a Christian legal center, told me that the notion of connecting the Declaration of Independence and the Constitution is “part of a strategy to give a clear historical understanding of the role of religion in American public life” that organizations like his have been pursuing for the last 10 or 15 years.
Besides the fact that incorporation by reference is usually used for technical purposes rather than for such grandiose purposes as the reinterpretation of foundational texts, there is an oddity to this tactic. “The founders deliberately left the word ‘God’ out of the Constitution—but not because they were a bunch of atheists and deists,” says Susan Jacoby, author of “Freethinkers: A History of American Secularism.” “To them, mixing religion and government meant trouble.” The curious thing is that in trying to bring God into the Constitution, the activists—who say their goal is to follow the original intent of the founders—are ignoring the fact that the founders explicitly avoided religious language in that document.
And here again there is a link to Texas. David Barton specifically advised the writers of the Texas guidelines that textbooks “should stipulate (but currently do not) that the Declaration of Independence is symbiotic with the Constitution rather than a separate unrelated document.”
In 2008, Cynthia Dunbar published a book called “One Nation Under God,” in which she stated more openly than most of her colleagues have done the argument that the founding of America was an overtly Christian undertaking and laid out what she and others hope to achieve in public schools. “The underlying authority for our constitutional form of government stems directly from biblical precedents,” she writes. “Hence, the only accurate method of ascertaining the intent of the Founding Fathers at the time of our government’s inception comes from a biblical worldview.”
Then she pushes forward: “We as a nation were intended by God to be a light set on a hill to serve as a beacon of hope and Christian charity to a lost and dying world.” But the true picture of America’s Christian founding has been whitewashed by “the liberal agenda”—in order for liberals to succeed “they must first rewrite our nation’s history” and obscure the Christian intentions of the founders. Therefore, she wrote, “this battle for our nation’s children and who will control their education and training is crucial to our success for reclaiming our nation.”
After the book came out, Dunbar was derided in blogs and newspapers for a section in which she writes of “the inappropriateness of a state-created, taxpayer-supported school system” and likens sending children to public school to “throwing them into the enemy’s flames, even as the children of Israel threw their children to Moloch.” (Her own children were either home-schooled or educated in private Christian schools.) When I asked, over dinner in a honky-tonk steakhouse down the road from the university, why someone who felt that way would choose to become an overseer of arguably the most influential public-education system in the country, she said that public schools are a battlefield for competing ideologies and that it’s important to combat the “religion” of secularism that holds sway in public education.
Ask Christian activists what they really want—what the goal is behind the effort to bring Christianity into American history—and they say they merely want “the truth.” “The main thing I’m looking for as a state board member is to make sure we have good standards,” Don McLeroy said. But the actual ambition is vast. Americans tell pollsters they support separation of church and state, but then again 65 percent of respondents to a 2007 survey by the First Amendment Center agreed with the statement that “the nation’s founders intended the United States to be a Christian nation,” and 55 percent said they believed the Constitution actually established the country as a Christian nation. The Christian activists are aware of such statistics and want to build on them, as Dunbar made clear. She told me she looks to John Jay’s statement that it is the duty of the people “of our Christian nation to select and prefer Christians for their rulers” and has herself called for a preference for selecting Christians for positions of leadership.
Dunbar’s book lays out the goal: using courts and public schools to fuse Christianity into the nation’s founding. It may be unlikely that it will be attained any time soon, in which case the seeding of Texas’ history-textbook guidelines with “Christian nation” concepts may be mostly symbolic. But symbols can accumulate weight over time, and the Christian activists are in it for the long haul. Some observers say that over time their effort could have far-reaching consequences. “The more you can associate Christianity with the founding, the more you can sway the future Supreme Court,” Martin Marty says. “That is what Pat Robertson was about years ago. Establish the founders as Christians, and you have it made.”
“Brown Bear, Brown Bear, What Do You See?” It’s not an especially subversive-sounding title, but the author of this 1967 children’s picture book, Bill Martin Jr., lost his place in the Texas social-studies guidelines at last month’s board meeting due to what was thought to be un-American activity—to be precise, “very strong critiques of capitalism and the American system.” Martin, the creator of 300 children’s books, was removed from the list of cultural figures approved for study by third graders in the blizzard of amendments offered by board members.
Over all, the TEKS guidelines make for impressive reading. They are thoughtful and deep; you can almost feel the effort at achieving balance. Poring down the long columns and knowing that the 1998 version of these guidelines served as the basis for textbooks in most U.S. states, you even begin to feel some hope for the future.
What is wrong with the Texas process, according to many observers, is illustrated by the fate of Bill Martin Jr. The board has the power to accept, reject or rewrite the TEKS, and over the past few years, in language arts, science and now social studies, the members have done all of the above. Yet few of these elected overseers are trained in the fields they are reviewing. “In general, the board members don’t know anything at all about content,” Tom Barber, the textbook executive, says. Kathy Miller, the watchdog, who has been monitoring the board for 15 years, says, referring to Don McLeroy and another board member: “It is the most crazy-making thing to sit there and watch a dentist and an insurance salesman rewrite curriculum standards in science and history. Last year, Don McLeroy believed he was smarter than the National Academy of Sciences, and he now believes he’s smarter than professors of American history.” In this case, one board member sent an e-mail message with a reference to “Ethical Marxism,” by Bill Martin, to another board member, who suggested that anyone who wrote a book with such a title did not belong in the TEKS. As it turned out, Bill Martin and Bill Martin Jr. are two different people. But by that time, the author of “Brown Bear, Brown Bear” was out. “That’s a perfect example of these people’s lack of knowledge,” Miller says. “They’re coming forward with hundreds of amendments at the last minute. Don McLeroy had a four-inch stack of amendments, and they all just voted on them, whether or not they actually knew the content. What we witnessed in January was a textbook example of how not to develop textbook standards.”
Before the January board meeting, one of the social-studies curriculum writers, Judy Brodigan, told me that she was very pleased with the guidelines her team produced. After the meeting, with its 10-hour marathon of amendments by board members, she spoke very differently. “I think they took a very, very good document and weakened it,” she said. “The teachers take their work seriously. I do believe there are board members on the ultraright who have an agenda. They want to make our standards very conservative and fit their viewpoint. Our job is not to take a viewpoint. It’s to present sides fairly. I thought we had done that.”
Regarding religion, the writing teams had included in their guidelines some of the recommendations of the experts appointed by the Christian bloc but had chosen to ignore most. I was led to expect that the January meeting would see a torrent of religion amendments, in which Don McLeroy would reinsert items that the team failed to include, just as he did with other subjects in the past. Last November, over dinner at a Tex-Mex restaurant across the street from the Texas A&M campus, McLeroy vowed to do so, saying, “I’ll get the details in there.” At that time, he and others were full of information and bravado as they pushed toward the “Christian nation” goal. But at the January meeting, while there were many conservative political amendments, there were only a few religion amendments. When I talked to him afterward, he shrugged it off in an uncharacteristically vague way. “We’re basically happy with things,” he said.
It’s possible a wave of religion amendments will come in the next meeting, in March, when American government will still be among the subjects under review. But the change of tone could signal a shift in strategy. “It could be that they feel they’ve already got enough code words sprinkled throughout the guidelines,” Kathy Miller says. The laws of Nature and Nature’s God. Moses and the Bible “informing” the American founding. “The Glory of God and advancement of the Christian Faith” as America’s original purpose. “We’ve seen in the past how one word here or there in the curriculum standards gets seized upon by the far-right members at adoption time,” Miller says. “In the science debate, the words ‘intelligent design’ did not appear, but they used ‘strengths and weaknesses’ as an excuse to pitch a battle. The phrase became a wedge to try to weaken the theory of evolution, to suggest that scientists had serious problems with it. We’ve seen the board use these tiny fragments to wage war on publishers.”
This squares with what Tom Barber, the textbook executive, told me: that in the next stage in the Texas process, general guidelines are chiseled into fact-size chunks in crisp columns of print via backroom cajoling. “The process of reviewing the guidelines in Texas is very open, but what happens behind the scenes after that is quite different,” Barber says. “McLeroy is kind of the spokesman for the social conservatives, and publishers will work with him throughout. The publishers just want to make sure they get their books listed.”
To give an illustration simultaneously of the power of ideology and Texas’ influence, Barber told me that when he led the social-studies division at Prentice Hall, one conservative member of the board told him that the 12th-grade book, “Magruder’s American Government,” would not be approved because it repeatedly referred to the U.S. Constitution as a “living” document. “That book is probably the most famous textbook in American history,” Barber says. “It’s been around since World War I, is updated every year and it had invented the term ‘living Constitution,’ which has been there since the 1950s. But the social conservatives didn’t like its sense of flexibility. They insisted at the last minute that the wording change to ‘enduring.’ ” Prentice Hall agreed to the change, and ever since the book—which Barber estimates controlled 60 or 65 percent of the market nationally—calls it the “enduring Constitution.”
Last fall, McLeroy was frank in talking about how he applies direct pressure to textbook companies. In the language-arts re-evaluation, the members of the Christian bloc wanted books to include classic myths and fables rather than newly written stories whose messages they didn’t agree with. They didn’t get what they wanted from the writing teams, so they did an end run around them once the public battles were over. “I met with all the publishers,” McLeroy said. “We went out for Mexican food. I told them this is what we want. We want stories with morals, not P.C. stories.” He then showed me an e-mail message from an executive at Pearson, a major educational publisher, indicating the results of his effort: “Hi Don. Thanks for the impact that you have had on the development of Pearson’s Scott Foresman Reading Street series. Attached is a list of some of the Fairy Tales and Fables that we included in the series.”
If there has been a shift in strategy, politics may have brought it about. The Christian bloc may have determined it would be wiser to work for this kind of transformational change out of the public gaze. Of the seven members of the Christian bloc, Ken Mercer is in a battle to keep his seat, Cynthia Dunbar recently announced she won’t run for re-election and after 11 years of forceful advocacy for fundamentalist causes on the Texas state board, during which time he was steadfastly supported by everyone from Gov. Rick Perry—who originally picked him as chairman—to tea-party organizers, Don McLeroy is now facing the stiffest opposition of his career. Thomas Ratliff, a well-connected lobbyist, has squared off against McLeroy in the Republican primary and is running an aggressive campaign, positioning himself as a practical, moderate Republican. “I’m not trying to out-conservative anyone,” Ratliff told me. “I think the state board of education has lost its way, and the social-studies thing is a prime example. They keep wanting to talk about this being a Christian nation. My attitude is this country was founded by a group of men who were Christians but who didn’t want the government dictating religion, and that’s exactly what McLeroy and his colleagues are trying to do.”
Ratliff has received prominent endorsements and has outraised McLeroy in the neighborhood of 10 to 1. But hard-core conservatives tend to vote in primaries. Anyone looking for signs of where the Republican Party is headed might scan the results of the Texas school-board District 9 Republican primary on the morning of March 3. If Don McLeroy loses, it could signal that the Christian right’s recent power surge has begun to wane. But it probably won’t affect the next generation of schoolbooks. The current board remains in place until next January. By then, decisions on what goes in the Texas curriculum guidelines will be history.