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Mozert v. Hawkins County Public Schools (The Tale of the Troubling Textbook) - Part Four | Blue Cereal Education

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If you’re interested in far more concise case summaries accompanied by pithy-but-97%-sociopolitically-fair-and-balanced insights, check out “Have To” History: Landmark Supreme Court Cases. If you’re specifically interested in the “wall of separation” as applied to public education, well… I’m working…

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This case showed the issues in schools in regards to religion and this website explains that.

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Pew Research Center's Religion & Public Life Project

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More than 55 years after the Supreme Court issued its landmark ruling striking down school-sponsored prayer, Americans continue to fight over the place of religion in public schools. Questions about religion in the classroom no longer make quite as many headlines as they once did, but the issue remains an important battleground in the broader conflict over religion's role in public life.

Some Americans are troubled by what they see as an effort on the part of federal courts and civil liberties advocates to exclude God and religious sentiment from public schools. Such an effort, these Americans believe, infringes on the First Amendment right to free exercise of religion.

Many civil libertarians and others, meanwhile, voice concern that conservative Christians and others are trying to impose their values on students. Federal courts, they point out, consistently have interpreted the First Amendment's prohibition on the establishment of religion to forbid state sponsorship of prayer and most other religious activities in public schools.

This debate centers on public schools; very few people are arguing that religious doctrine cannot be taught at private schools or that teachers at such schools cannot lead students in prayer. And even in public institutions, there is little debate about the right of individual students, teachers and other school employees to practice their religion - by, say, praying before lunch or wearing religious clothing or symbols.

Moreover, as a 2019 survey of American teens shows some forms of religious expression are relatively common in public schools. For instance, about four-in-ten public school students say they routinely see other students praying before sporting events, according to the survey. And about half of U.S. teens in public schools (53%) say they often or sometimes see other students wearing jewelry or clothing with religious symbols.

About this report

This analysis, updated on Oct. 3, 2019, was originally published in 2007 as part of a larger series that explored different aspects of the complex and fluid relationship between government and religion. This report includes sections on school prayer, the pledge of allegiance, religion in school curricula, and the religious liberty rights of students and teachers.

The report does not address questions of government funding for religious schools (that is, school vouchers and tax credits) because the schools in question are largely private, not public. For a discussion of vouchers and similar issues, see " Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations." Because that analysis was published in 2009 and has not been updated, it does not include a discussion of more recent Supreme Court voucher rulings or upcoming cases.

Conflicts over religion in school are hardly new. In the 19th century, Protestants and Catholics frequently fought over Bible reading and prayer in public schools. The disputes then were over which Bible and which prayers were appropriate to use in the classroom. Some Catholics were troubled that the schools' reading materials included the King James version of the Bible, which was favored by Protestants. In 1844, fighting broke out between Protestants and Catholics in Philadelphia; a number of people died in the violence and several Catholic churches were burned. Similar conflicts erupted during the 1850s in Boston and other parts of New England. In the early 20th century, liberal Protestants and their secular allies battled religious conservatives over whether students in biology classes should be taught Charles Darwin's theory of evolution.

The Pillars of Church-State Law

The Supreme Court stepped into those controversies when it ruled, in Cantwell v. Connecticut (1940) and Everson v. Board of Education of Ewing Township (1947), that the First Amendment's Establishment Clause and Free Exercise Clause applied to the states. The two clauses say, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Before those two court decisions, courts had applied the religion clauses only to actions of the federal government.

Soon after the Everson decision, the Supreme Court began specifically applying the religion clauses to activities in public schools. In its first such case, McCollum v. Board of Education (1948), the high court invalidated the practice of having religious instructors from different denominations enter public schools to offer religious lessons during the school day to students whose parents requested them. A key factor in the court's decision was that the lessons took place in the schools. Four years later, in Zorach v. Clauson, the court upheld an arrangement by which public schools excused students during the school day so they could attend religious classes away from school property. (The new Pew Research Center survey finds that one-in-ten religiously affiliated teens in public school leave the school for religious activities.)

Beginning in the 1960s, the court handed religious conservatives a series of major defeats. It began with the landmark 1962 ruling, Engel v. Vitale, that school-sponsored prayer - even nonsectarian prayer - violated the Establishment Clause. Since then, the Supreme Court has pushed forward, from banning organized Bible reading for religious and moral instruction in 1963 to prohibiting school-sponsored prayers at high school football games in 2000. (The new survey finds that 8% of teens in public school have ever seen a teacher lead the class in prayer, and the same share have ever had a teacher read to the class from the Bible as an example of literature.)

In these and other decisions, the court has repeatedly stressed that the Constitution prohibits public schools from indoctrinating children in religion. But it is not always easy to determine exactly what constitutes indoctrination or school sponsorship of religious activities. For example, can a class on the Bible as literature be taught without a bias for or against the idea that the Bible is religious truth? Can students be compelled to participate in a Christmas-themed music program? Sometimes students themselves, rather than teachers, administrators or coaches, bring faith into school activities. For instance, when a student invokes gratitude to God in a valedictory address, or a high school football player offers a prayer in a huddle, is the school legally responsible for their religious expression?

The issues are complicated by other constitutional guarantees. For instance, the First Amendment also protects freedom of speech and freedom of association. Religious groups have cited those guarantees in support of student religious speech and in efforts to obtain school sponsorship and resources for student religious clubs.

The right of a student or student club to engage in religious speech or activities on school property may, however, conflict with other protections, such as the right of students to avoid harassment. In one case, for example, a federal appeals court approved a high school's decision to prohibit a student from wearing a T-shirt containing a biblical passage condemning homosexuality. Because the student had graduated by the time the Supreme Court granted his appeal, the Supreme Court ordered the lower court to vacate its ruling and dismiss the case.

In another instance of conflict, some student religious groups want the right to exclude students who do not share the groups' beliefs, specifically on questions of sexuality. For example, the Christian Legal Society (CLS), which has chapters in many law schools, requires those who serve in leadership positions to agree to a statement that renounces "unbiblical behaviors," such as engaging in sexual relationships outside of heterosexual marriage. CLS sued a number of law schools after they denied the group official recognition because this leadership policy violated the schools' nondiscrimination policies. In one of these cases, the Supreme Court ruled against CLS, stating that these nondiscrimination policies were constitutional so long as they were viewpoint neutral and fairly applied to all groups seeking recognition on campus.

As these more recent controversies show, public schools remain a battlefield where the religious interests of parents, students, administrators and teachers often clash. The conflicts affect many aspects of public education, including classroom curricula, high school football games, student clubs, graduation ceremonies.

Prayer and the Pledge

School prayer

The most enduring and controversial issue related to school-sponsored religious activities is classroom prayer. In Engel v. Vitale (1962), the Supreme Court held that the Establishment Clause prohibited the recitation of a school-sponsored prayer in public schools. Engel involved a simple and seemingly nonsectarian prayer composed especially for use in New York's public schools. In banning the prayer exercise entirely, the court did not rest its opinion on the grounds that unwilling students were coerced to pray; that would come much later. Rather, the court emphasized what it saw as the wrongs of having the government create and sponsor a religious activity.

The following year, the high court extended the principle outlined in Engel to a program of daily Bible reading. In Abington School District v. Schempp, the court ruled broadly that school sponsorship of religious exercises violates the Constitution. Schempp became the source of the enduring constitutional doctrine that all government action must have a predominantly secular purpose - a requirement that, according to the court, the Bible-reading exercise clearly could not satisfy. By insisting that religious expression be excluded from the formal curriculum, the Supreme Court was assuring parents that public schools would be officially secular and would not compete with parents in their children's religious upbringing.

With Engel and Schempp, the court outlined the constitutional standard for prohibiting school-sponsored religious expression, a doctrine the court has firmly maintained. In Stone v. Graham (1980), for instance, it found unconstitutional a Kentucky law requiring all public schools to post a copy of the Ten Commandments. And in Wallace v. Jaffree (1985), it overturned an Alabama law requiring public schools to set aside a moment each day for silent prayer or meditation. However, in a concurrent opinion in Wallace, Justice Sandra Day O'Connor suggested that a moment of silence requirement might pass constitutional muster if it had a "secular purpose." And in a subsequent 2009 case, Croft v. Perry, the U.S. Court of Appeals for the 5th Circuit upheld a Texas law mandating a moment of silence because it determined that, in passing the law, the state legislature had sufficiently articulated a secular purpose.

But while courts have given states some latitude in crafting moment of silence statutes, they have shown much less deference to laws or policies that involve actual prayer. In 2000, for instance, the Supreme Court ruled in Santa Fe Independent School District v. Doe that schools may not sponsor student-recited prayer at high school football games.

More sweeping in its consequences is Lee v. Weisman (1992), which invalidated a school-sponsored prayer led by an invited clergyman at a public school commencement in Providence, Rhode Island. The court's 5-4 decision rested explicitly on the argument that graduating students were being forced to participate in a religious ceremony. The case effectively outlawed a practice that was customary in many communities across the country, thus fueling the conservative critique that the Supreme Court was inhospitable to public expressions of faith.

So far, lower appellate courts have not extended the principles of the school prayer decisions to university commencements (Chaudhuri v. Tennessee, 6th U.S. Circuit Court of Appeals, 1997; Tanford v. Brand, 7th Circuit, 1997). The 4th Circuit, however, found unconstitutional the practice of daily prayer at supper at the Virginia Military Institute. In that case, Mellen v. Bunting (2003), the appellate court reasoned that VMI's military-like environment tended to coerce participation by cadets. The decision was similar to an earlier ruling by the U.S. Circuit Court of Appeals for the District of Columbia, which found unconstitutional a policy of the U.S. service academies that all cadets and midshipmen attend Protestant, Catholic or Jewish chapel services on Sunday (Anderson v. Laird, 1972). For the court, the key element was the service academies' coercion of students to attend the religious activity.

Most recently, in 2019, the Supreme Court declined to review a 9th Circuit Court of Appeals decision upholding the firing of a football coach at a public high school for praying on the field with his players after games. However, in a statement accompanying the denial of review, Justice Samuel A. Alito Jr. (joined by fellow conservative justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) indicated the high court would be open to reviewing other cases involving similar issues. Alito wrote that the court denied review in this case due to "important unresolved factual questions," and that "the 9th Circuit's understanding of free speech rights of public school teachers is troubling and may justify review in the future."

The Pledge of Allegiance

In 1954, Congress revised the Pledge of Allegiance to refer to the nation as "under God," a phrase that has since been recited by generations of schoolchildren. In 2000, Michael Newdow filed suit challenging the phrase on behalf of his daughter, a public school student in California. Newdow argued that the words "under God" violated the Establishment Clause because they transformed the pledge into a religious exercise.

The case, Elk Grove Unified School District v. Newdow, reached the Supreme Court in 2004, but the justices did not ultimately decide whether the phrase was acceptable. Instead, the court ruled that Newdow lacked standing to bring the suit because he did not have legal custody of his daughter. In concurring opinions, however, four justices expressed the view that the Constitution permitted recitation of the pledge - with the phrase "under God" - in public schools.

While the issue never reached the Supreme Court again, it continued to be litigated in the lower courts. In Myers v. Loudoun County Public Schools (2005), the 4th U.S. Circuit Court of Appeals upheld recitation of the pledge in Virginia, but a U.S. district court in California ruled the other way in another suit involving Michael Newdow and other parents. However, the 9th U.S. Circuit Court of Appeals in 2010 reversed the district court decision, ruling that the recitation of the pledge did not constitute an establishment of religion.

School officials and student speech

The courts have drawn a sharp distinction between officially sponsored religious speech, such as a benediction by an invited clergyman at a commencement ceremony, and private religious speech by students. The Supreme Court made clear in Lee v. Weisman (1992) that a clergyman's benediction at a public school event would violate the separation of church and state. Judges usually reach that same conclusion when school officials cooperate with students to produce student-delivered religious messages. But federal courts are more divided in cases involving students acting on their own to include a religious sentiment or prayer at a school commencement or a similar activity.

Some courts, particularly in the South, have upheld the constitutionality of student-initiated religious speech, emphasizing the private origins of this kind of religious expression. As long as school officials did not encourage or explicitly approve the contents, those courts have upheld religious content in student commencement speeches.

In Adler v. Duval County School Board (1996), for example, the 11th U.S. Circuit Court of Appeals approved a system at a Florida high school in which the senior class, acting independently of school officials, selected a class member to deliver a commencement address. School officials neither influenced the choice of speaker nor screened the speech. Under those circumstances, the appeals court ruled that the school was not responsible for the religious content of the address.

Other courts, however, have invalidated school policies that permit student speakers to include religious sentiments in graduation addresses. One leading case is ACLU v. Black Horse Pike Regional Board of Education (1996), in which the senior class of a New Jersey public high school selected the student speaker by a vote without knowing in advance the contents of the student's remarks. The 3rd U.S. Circuit Court of Appeals nevertheless ruled that the high school could not permit religious content in the commencement speech. The court reasoned that students attending the graduation ceremony were as coerced to acquiesce in a student-led prayer as they would be if the prayer were offered by a member of the clergy, the practice forbidden by Weisman in 1992. (Supreme Court Justice Samuel A. Alito Jr., who was then a member of the appeals court, joined a dissenting opinion in the case, arguing that the graduating students' rights to religious and expressive freedom should prevail over the Establishment Clause concerns.)

Similarly, in Bannon v. School District of Palm Beach County (2004), the 11th U.S. Circuit Court of Appeals ruled that Florida school officials were right to order the removal of student-created religious messages and symbols from a school beautification project. The court reasoned that the project was not intended as a forum for the expression of students' private views but rather as a school activity for which school officials would be held responsible.

Religion in the curriculum

The Supreme Court's decisions about officially sponsored religious expression in schools consistently draw a distinction between religious activities such as worship or Bible reading, which are designed to inculcate religious sentiments and values, and "teaching about religion," which is both constitutionally permissible and educationally appropriate. On several occasions, members of the court have suggested that public schools may teach "the Bible as literature," include lessons about the role of religion and religious institutions in history or offer courses on comparative religion.

Creationism and evolution

Courts have long grappled with attempts by school boards and other official bodies to change the curriculum in ways that directly promote or denigrate a particular religious tradition. Best known among these curriculum disputes are those involving the conflict between proponents and opponents of Darwin's theory of evolution, which explains the origin of species through evolution by means of natural selection. Opponents favor teaching some form of creationism, the idea that life came about as described in the biblical book of Genesis or evolved under the guidance of a supreme being. A recent alternative to Darwinism, intelligent design, asserts that life is too complex to have arisen without divine intervention.

The Supreme Court entered the evolution debate in 1968, when it ruled, in Epperson v. Arkansas, that Arkansas could not eliminate from the high school biology curriculum the teaching of "the theory that mankind descended from a lower order of animals." Arkansas' exclusion of that aspect of evolutionary theory, the court reasoned, was based on a preference for the account of creation in the book of Genesis and thus violated the state's constitutional obligation of religious neutrality.

Almost 20 years later, in Edwards v. Aguillard (1987), the Supreme Court struck down a Louisiana law that required "balanced treatment" of evolution science and "creation science," so that any biology teacher who taught one also had to teach the other. The court said the law's purpose was to single out a particular religious belief - in this case, biblical creationism - and promote it as an alternative to accepted scientific theory. The court also pointed to evidence that the legislation's sponsor hoped that the balanced treatment requirement would lead science teachers to abandon the teaching of evolution.

Lower courts consistently have followed the lead of Epperson and Edwards. As a result, school boards have lost virtually every fight over curriculum changes designed to challenge evolution, including disclaimers in biology textbooks. One of the most recent and notable of these cases, Kitzmiller v. Dover Area School District (2005), involved a challenge to a Pennsylvania school district's policy of informing high school science students about intelligent design as an alternative to evolution. After lengthy testimony from both proponents and opponents of intelligent design, a federal district court in Pennsylvania concluded that the policy violates the Establishment Clause because intelligent design is a religious, rather than scientific, theory.

Kitzmiller may have been the last major evolution case to make national headlines, but the debate over how to teach about the origins and development of life in public schools has continued in state legislatures, boards of education and other public bodies. In 2019, for instance, policies that could affect the way evolution is taught in public school (often by limiting discussion of "controversial issues") were introduced and in some cases debated in several states, including Arizona, Florida, Maine, Oklahoma, South Dakota and Virginia.

Study of the Bible

Courts have also expended substantial time and energy considering public school programs that involve Bible study. Although the Supreme Court has occasionally referred to the permissibility of teaching the Bible as literature, some school districts have instituted Bible study programs that courts have found unconstitutional. Frequently, judges have concluded that these courses are thinly disguised efforts to teach a particular understanding of the New Testament.

In a number of these cases, school districts have brought in outside groups to run the Bible study program. The groups, in turn, hired their own teachers, in some cases Bible college students or members of the clergy who did not meet state accreditation standards.

Such Bible study programs have generally been held unconstitutional because, the courts conclude, they teach the Bible as religious truth or are designed to inculcate particular religious sentiments. For a public school class to study the Bible without violating constitutional limits, the class would have to include critical rather than devotional readings and allow open inquiry into the history and content of biblical passages.

Holiday programs

Christmas-themed music programs also have raised constitutional concerns. For a holiday music program to be constitutionally sound, the courts maintain, school officials must ensure the predominance of secular considerations, such as the program's educational value or the musical qualities of the pieces. The schools also must be sensitive to the possibility that some students will feel coerced to participate in the program (Bauchman v. West High School, 10th U.S. Circuit Court of Appeals, 1997; Doe v. Duncanville Independent School District, 5th Circuit, 1995). Moreover, the courts have said, no student should be forced to sing or play music that offends their religious sensibilities. Therefore, schools must allow students the option not to participate.

Multiculturalism

Not all the cases involving religion in the curriculum concern the promotion of the beliefs of the majority. Indeed, challenges have come from Christian groups arguing that school policies discriminate against Christianity by promoting cultural pluralism.

In one example, the 2nd U.S. Circuit Court of Appeals considered a New York City Department of Education policy regulating the types of symbols displayed during the holiday seasons of various religions. The department allows the display of a menorah as a symbol for Hanukkah and a star and crescent to evoke Ramadan but permits the display of only secular symbols of Christmas, such as a Christmas tree; it explicitly forbids the display of a Christmas nativity scene in public schools.

Upholding the city's policy, the Court of Appeals reasoned in Skoros v. Klein (2006) that city officials intended to promote cultural pluralism in the highly diverse setting of the New York City public schools. The court concluded that a "reasonable observer" would understand that the star and crescent combination and the menorah had secular as well as religious meanings. The judicial panel ruled that the policy, therefore, did not promote Judaism or Islam and did not denigrate Christianity.

In another high-profile case, Citizens for a Responsible Curriculum v. Montgomery County Public Schools (2005), a Maryland citizens' group successfully challenged a health education curriculum that included discussion of sexual orientation. Ordinarily, opponents of homosexuality could not confidently cite the Establishment Clause as the basis for a complaint, because the curriculum typically would not advance a particular religious perspective. However, the Montgomery County curriculum included materials in teacher guides that disparaged some religious teachings on homosexuality as theologically flawed and contrasted those teachings with what the guide portrayed as the more acceptable and tolerant views of some other faiths. The district court concluded that the curriculum had both the purpose and effect of advancing certain faiths while denigrating the beliefs of others. The county rewrote these materials to exclude any reference to the views of particular faiths, making them more difficult to challenge successfully in court because the lessons did not condemn or praise any faith tradition.

Rights in and out of the classroom

At the time of its school prayer decisions in the early 1960s, the Supreme Court had never ruled on whether students have the right of free speech inside public schools. By the end of that decade, however, the court began to consider the question. And the results have made the rules for religious expression far more complex.

Rights of students

The leading Supreme Court decision on freedom of student speech is Tinker v. Des Moines School District (1969), , which upheld the right of students to wear armbands protesting the Vietnam War. The court ruled that school authorities may not suppress expression by students unless the expression significantly disrupts school discipline or invades the rights of others.

This endorsement of students' freedom of speech did not entirely clarify things for school officials trying to determine students' rights. Tinker supported student expression, but it did not attempt to reconcile that right of expression with the Supreme Court's earlier decisions forbidding student participation in school-sponsored prayer and Bible reading. Some school officials responded to the mix of student liberties and restraints by forbidding certain forms of student-initiated religious expression such as the saying of grace before lunch in the school cafeteria, student-sponsored gatherings for prayer at designated spots on school property, or student proselytizing aimed at other students.

After years of uncertainty about these matters, several interest groups devoted to religious freedom and civil liberties drafted a set of guidelines, "Religious Expression in Public Schools," which the U.S. Department of Education sent to every public school superintendent in 1995. The department revised the guidelines in 2003, placing somewhat greater emphasis on the rights of students to speak or associate for religious purposes. The guidelines highlight these four general principles:

Students, acting on their own, have the same right to engage in religious activity and discussion as they do to engage in comparable secular activities.

Students may offer a prayer or blessing before meals in school or assemble on school grounds for religious purposes to the same extent as other students who wish to express their personal views or assemble with others. (The new survey finds that 26% of religiously affiliated teens in public school say they often or sometimes pray before eating lunch.)

Students may not engage in religious harassment of others or compel other students to participate in religious expression, and schools may control aggressive and unwanted proselytizing.

Schools may neither favor nor disfavor students or groups on the basis of their religious identities.

A case decided by the 9th U.S. Circuit Court of Appeals underscores the difficulties that school officials still can face when students exercise their right to religious expression on school property. In this case, gay and lesbian students in a California high school organized a Day of Silence, in which students promoting tolerance of differences in sexual orientation refrained from speaking in school. The following day, Tyler Harper, a student at the school, wore a T-shirt that on the front read, "Be Ashamed, Our School Has Embraced What God Has Condemned," and on the back, "Homosexuality Is Shameful, Romans 1:27." School officials asked him to remove the shirt and took him out of class while they attempted to persuade him to do so.

The Court of Appeals, in Harper v. Poway Unified School District (2006), rejected Harper's claim that the school officials violated his First Amendment rights. Judge Stephen Reinhardt, writing for a 2- 1 majority and citing Tinker, argued that students' constitutional rights may be limited to prevent harming the rights of other students. He concluded that the T-shirt could be seen as violating school policies against harassment based on sexual orientation.

Writing in dissent, Judge Alex Kozinski asserted that the school's sexual harassment policy was far too vague and sweeping to support a restriction on all anti-gay speech. He also argued that the school district had unlawfully discriminated against Harper's freedom of speech. By permitting the Gay and Lesbian Alliance to conduct the Day of Silence, Kozinski said, the district was choosing sides on a controversial social issue and stifling religiously motivated speech on one side of the issue.

Harper petitioned the Supreme Court to review the appeals court decision. But Harper graduated from high school, and the case took a different turn. The Supreme Court, in early 2007, ordered the lower court to vacate its ruling and dismiss the case on the grounds that it had become moot.

Harper highlighted a tension - one that may yet recur - between the rights of students to engage in religious expression and the rights of other students to be educated in a non-hostile environment. The Supreme Court eventually may clarify school officials' power to suppress speech as a means of protecting the rights of other students. For now, cases like Harper illustrate the difficulties for school officials in regulating student expression.

Rights of parents

Parents sometimes complain that secular practices at school inhibit their right to direct the religious upbringing of their children. These complaints typically rest on both the Free Exercise Clause of the First Amendment and the 14th Amendment's Due Process Clause, which forbids the state to deprive any person of "life, liberty or property without due process of law." The Supreme Court has interpreted them as protecting the right of parents to shape and control the education of their children. When they object to certain school practices, the parents often seek permission for their children to skip the offending lesson or class - to opt out - rather than try to end the practice schoolwide.

The first decision by the Supreme Court on parents' rights to control their children's education came in Pierce v. Society of Sisters (1925), which guarantees to parents the right to enroll their children in private rather than public schools, whether the private schools are religious or secular. In West Virginia State Board of Education v. Barnette (1943), the court upheld the right of public school students who were Jehovah's Witnesses to refuse to salute the American flag. The students said the flag represented a graven image and that their religion forbade them from recognizing it. The court's decision rested on the right of all students, not just those who are religiously motivated, to resist compulsory recitation of official orthodoxy, political or otherwise.

Of all the Supreme Court rulings supporting religious opt-outs, perhaps the most significant came in Wisconsin v. Yoder (1972), which upheld the right of members of the Old Order Amish to withdraw their children from formal education at the age of 14. The court determined that a state law requiring children to attend school until the age of 16 burdened the free exercise of their families' religion. The Amish community had a well-established record as hardworking and law-abiding, the court noted, and Amish teens would receive home-based training. The worldly influences present in the school experience of teenagers, the court said, would undercut the continuity of agrarian life in the Amish community.

In later decisions, lower courts recognized religious opt-outs in other relatively narrow circumstances. Parents successfully cited religious grounds to win the right to remove their children from otherwise compulsory military training (Spence v. Bailey, 1972) and from a coeducational physical education class in which students had to dress in "immodest apparel" (Moody v. Cronin, 1979). In Menora v. Illinois High School Association (1982), the 7th U.S. Circuit Court of Appeals ruled that the Illinois High School Association was constitutionally obliged to accommodate Orthodox Jewish basketball players who wanted to wear a head covering, despite an association rule forbidding headgear. The Menora case involves a narrow exception from the dress code, rather than a broader right to opt out of a curriculum requirement.

A great many school districts, meanwhile, have recognized the force of parents' religious or moral concerns on issues of sexuality and reproduction and have voluntarily provided opt-outs from classes devoted to those topics. Under these opt-out programs, parents do not have to explain their objection, religious or otherwise, to participation by their children. On other occasions, however, parental claims that the Constitution entitles them to remove their children from part or all of a public school curriculum have fared rather poorly.

The issue of home schooling is a good example. Before state legislatures passed laws allowing home schooling, parents seeking to educate their children at home were often unsuccessful in the courts. Many judges distinguished these home schooling cases from Yoder on the grounds that Yoder involved teenagers rather than young children. The judges also noted that Yoder was concerned with the survival of an entire religious community - the Old Order Amish - rather than the impact of education on a single family. Indeed, in virtually all the cases decided over the past 25 years, courts have found that the challenged curriculum requirement did not unconstitutionally burden parents' religious choices.

The most famous of the cases is Mozert v. Hawkins County Board of Education (1987), in which a group of Tennessee parents complained that references to mental telepathy, evolution, secular humanism, feminism, pacifism and magic in a series of books in the reading curriculum offended the families' Christian beliefs. The school board originally allowed children to choose alternative reading materials but then eliminated that option.

The 6th U.S. Circuit Court of Appeals ruled in the county's favor on the grounds that students were not being asked to do anything in conflict with their religious obligations. Furthermore, the court said, the school board had a strong interest in exposing children to a variety of ideas and images and in using a uniform series of books for all children. Because the books did not explicitly adopt or denigrate particular religious beliefs, the court concluded, the parents could insist neither on the removal of the books from the schools nor on their children opting out.

The 1st U.S. Circuit Court of Appeals reached a similar conclusion in a case involving a public high school in Massachusetts that held a mandatory assembly devoted to AIDS and sex education. In that case, Brown v. Hot, Sexy, and Safer Productions (1995), the court rejected a complaint brought by parents who alleged that exposure to sexually explicit material infringed on their rights to religious freedom and control of the upbringing of their children. The court concluded that this one-time exposure to the material would not substantially burden the parents' freedom to rear their children and that the school authorities had strong reasons to inform high school students about "safe sex."

More recently, parents and students have, on religious liberty and other grounds, sued school districts that accommodate transgender students by allowing them to use bathroom and locker facilities that match their current gender identity rather than their sex at birth. Some parents and students argue that the new arrangements violate their religious liberty rights because the school policy forces them to accommodate a set of moral and religious beliefs they disagree with.

So far, however, federal courts have sided with school districts that have accommodated transgender students. For instance, in Parents for Privacy v. Dallas School District No. 2, a federal district court dismissed a suit against Oregon's Dallas school district, stating that accommodating transgender students does not impinge on the religious rights of other students or their parents. And in 2019, the Supreme Court declined to review Doe v. Boyertown Area School District, letting stand a 3rd U.S. Circuit Court of Appeals ruling upholding a Pennsylvania school district's policy to accommodate transgender students.

Rights of teachers and administrators

Without question, public school employees retain their rights to free exercise of religion. When off duty, school employees are free to engage in worship, proselytizing or any other lawful faith-based activity. When they are acting as representatives of a public school system, however, courts have said their rights are constrained by the Establishment Clause.

This limitation on religious expression raises difficult questions. The first is what limits school systems may impose on the ordinary and incidental expression of religious identity by teachers in the classroom. Most school systems permit teachers to wear religious clothing or jewelry. Similarly, teachers may disclose their religious identity; for instance, they need not refuse to answer when a student asks, "Do you celebrate Christmas or Hanukkah?" or "Did I see you at the Islamic center yesterday morning?"

At times, however, teachers act in an uninvited and overtly religious manner toward students and are asked by school administrators to refrain. When those requests have led to litigation, administrators invariably have prevailed on the grounds that they are obliged (for constitutional and pedagogical reasons) to be sensitive to a teacher's coercive potential.

In Bishop v. Aronov (1991), for example, the 11th U.S. Circuit Court of Appeals upheld a set of restrictions imposed by the University of Alabama on a professor of exercise physiology. Professor Phillip Bishop had been speaking regularly to his class about the role of his Christian beliefs in his work and had scheduled an optional class in which he offered a "Christian perspective" on human physiology. The court recognized the university's general authority to control the way in which instruction took place, noting that Bishop's academic freedom was not jeopardized since he retained the right to express his religious views in his published writing and elsewhere.

In Roberts v. Madigan (1990), a federal district court similarly upheld the authority of a public school principal in Colorado to order a fifth-grade teacher to take down a religious poster from the classroom wall and to remove books titled "The Bible in Pictures" and "The Life of Jesus" from the classroom library. The court also backed the principal's order that the teacher remove the Bible from his desktop and refrain from silently reading the Bible during instructional time. The court emphasized that school principals need such authority to prevent potential violations of the Establishment Clause and to protect students against a religiously coercive atmosphere.

That much is clear. What is less clear is how public school systems should draw the line between teachers' official duties and their own time. That was the key question in Wigg v. Sioux Falls School District (8th U.S. Circuit Court of Appeals, 2004), in which a teacher sued the South Dakota school district for refusing to allow her to serve as an instructor in the Good News Club (an evangelical Christian group) that met after school hours at various public elementary schools in the district.

A federal district court ruled that the teacher, Barbara Wigg, should be free to participate in the club but said the school district could insist that the teacher not participate at the school where she was employed. The appellate court affirmed the decision but went further in protecting the teacher's rights, concluding that the school district could not exclude her from the program at her own school. The court reasoned that once the school day ended, Wigg became a private citizen, leaving her free to be a Good News Club instructor at any school, including the one where she worked. The court ruled that no reasonable observer would perceive Wigg's after-school role as being carried out on behalf of the school district, even though the club met on school property.

In general, then, the courts have ruled that public schools have substantial discretion to regulate the religious expression of teachers during instructional hours, especially when students are required to be present. The courts have also ruled, however, that attempts by schools to extend that control into non-instructional hours constitute an overly broad intrusion on the teachers' religious freedom.

Religious activities and the principle of equal access

Over the past 20 years, evangelical Christians and others have advanced the rights of religious organizations to have equal access to meeting space and other forms of recognition provided by public schools to students. These organizations have consistently succeeded in securing the same privileges provided by public schools to secular groups.

Their victories have not been based on a claim that religious groups have a right to official recognition simply because they want to practice or preach their religion; instead, these cases have been won on free-speech grounds.

Whenever public schools recognize student extracurricular activities (for example, a student Republican club or an animal rights group), the schools are deemed to have created a forum for student expression. The constitutional rules governing the forum concept are complicated, but one consistent theme is that the state may not discriminate against a person or group seeking access to the forum based on that person's or group's viewpoint. In a now-lengthy line of decisions, the Supreme Court has ruled consistently that religious groups represent a particular viewpoint on the subjects they address and that officials may not exclude that viewpoint from a government-created forum for expression or association.

The first major decision in this area was Widmar v. Vincent(1981), , in which the Supreme Court ruled that the University of Missouri could not exclude from campus facilities a student group that wanted to use the school's buildings for worship and Bible study. The university had refused the group access, asserting that the Establishment Clause forbade the use of a public university's facilities for worship. The court rejected this defense, ruling that the university had allowed other student groups to use university property and that the complaining group could not be excluded on the basis of its religious viewpoint.

The Supreme Court later extended Widmar's notion of equal access to nonstudent groups. They, too, should have access to public space, the court said. Despite the decision in Widmar, however, some public high schools continued to refuse access to student religious groups. Those schools took the view that prayer and Bible reading in public schools were constitutionally impermissible, even if wholly student initiated. At least one court of appeals has upheld that argument.

Congress responded by passing the Equal Access Act of 1984. As a condition for receiving federal financial aid, the law required that public secondary schools not discriminate on the basis of religion or political viewpoint in recognizing and supporting extracurricular activities. This law has benefited a variety of student organizations, from gay and lesbian groups to evangelical Christian clubs.

In 1985, a year after Congress passed the equal access law, school officials in Omaha, Nebraska, refused a student request for permission to form a Christian club at a public high school. The club's activities included reading and discussing the Bible and engaging in prayer. The students filed suit under the Equal Access Act, and the school officials responded that allowing such a club in a public school would violate the Establishment Clause.

In the court case, Board of Education v. Mergens (1990), the Supreme Court upheld the Equal Access Act. The 8-1 majority reasoned that high schools were indistinguishable from universities for purposes of equal access to public facilities. Because there were many student groups devoted to different and frequently opposing causes, the court determined that no reasonable observer would see the school's recognition of a religious group as an official endorsement of the group's religious views.

The limits of Widmar and Mergens were later put to the test in Rosenberger v. University of Virginia (1995) and Good News Club v. Milford Central School District (2001). In Rosenberger, the Supreme Court held 5-4 that the Free Speech Clause of the First Amendment required a state university to grant the same printing subsidy to an evangelical journal that it made available to all other student journals. The dissenters argued, unsuccessfully, that state financial support for a proselytizing journal violated the Establishment Clause. In Good News Club, a 6-3 majority held that the Free Speech Clause prohibited an elementary school from excluding an evangelical Christian program for children from the list of accepted after-school activities.

These equal access decisions have led to new controversies in the lower courts. In Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools (2006), for instance, a federal appellate court extended the equal access principle to fliers that schools distributed to students to take home for the purpose of informing parents about after-school activities. For years the county had distributed fliers for children's sports leagues and activities like the Boy Scouts. But it refused to distribute fliers for the after-school programs of the Child Evangelism Fellowship of Maryland, which are not held on school property. The 4th U.S. Circuit Court of Appeals held that the county's flier distribution policy was unconstitutionally discriminatory.

The presence of student religious groups in public schools has raised one additional issue. At times these groups insist that their officers make specific religious commitments, such as accepting Jesus Christ as savior and maintaining sexual abstinence outside of heterosexual marriage. As a result, some students are excluded from joining the group or from its leadership ranks. In Hsu v. Roslyn Union Free School District No. 3 (1996), the 2nd U.S. Circuit Court of Appeals held that the federal Equal Access Act gave students in an evangelical Christian group the right to maintain religious criteria for office. The court said the school's policy against religious discrimination by student groups was unenforceable in this instance.

The issue arrived at the Supreme Court in 2010 in a case involving a public law school's decision to deny official recognition to the Christian Legal Society (CLS), a nationwide, nondenominational organization of Christian lawyers, judges and law students. Although the case, Christian Legal Society v. Martinez, involved just one law school (the University of California, Hastings College of Law), other law schools around the country also had been sued by the organization for similar reasons. By the time the Supreme Court agreed to hear Martinez, lower federal courts in different cases had ruled both for and against the organization.

The case centered on Hastings' policies toward student organizations. Student groups that are officially recognized by Hastings enjoy certain privileges, including access to school facilities and funding. But CLS membership requirements effectively bar non-Christians from becoming voting members and non-celibate gays and lesbians from assuming leadership positions, which conflicts with the law school's stated policy of requiring registered student groups to accept any students as members. After Hastings refused to exempt CLS from the policy - known as the "all-comers" policy - the group sued, claiming the policy violated its First and 14th Amendment rights to free speech, expressive association and freedom of religious expression. A federal district court and the Court of Appeals for the 9th Circuit sided with Hastings, and CLS appealed to the Supreme Court.

The case was widely viewed as a contest between the right of free association and nondiscrimination policies. In its ruling, however, the court did not resolve any broad questions raised by this conflict. Instead, the 5-4 majority handed down a narrowly tailored decision that upheld the specific policy of Hastings Law School - the "all-comers" policy - as long as it is applied in an evenhanded manner.

Writing for the high court's majority, Justice Ruth Bader Ginsburg said that Hastings' policy requiring officially registered student groups to allow anyone to join does not unconstitutionally discriminate against groups with particular viewpoints or missions. Quite the contrary, she wrote, the policy is completely neutral since it requires all organizations to open their membership and leadership to all students. Ginsburg argued that it is CLS that wants an exemption from the policy and thus threatens its neutrality. Moreover, she wrote, an "all-comers" policy is reasonable for an educational institution because it encourages all groups to accept and interact with students who hold diverse views. Finally, Ginsburg noted that even though the Christian Legal Society has been denied official recognition by the law school, the group can, and still does, freely operate on campus and is even allowed to use school facilities to hold meetings.

Writing for the dissent, Justice Samuel A. Alito Jr. argued that by affirming Hastings' policy, the majority sacrificed core First Amendment principles in favor of political correctness and armed "public educational institutions with a handy weapon for suppressing the speech of unpopular groups." In addition, Alito asserted, the majority overlooked certain evidence demonstrating that Hastings had singled out CLS because of its beliefs. Prior to the lawsuit, he said, many officially recognized groups on the Hastings campus - not just CLS - had membership requirements written into their bylaws that were discriminatory. Justice Alito also disputed the majority's contention that CLS, even without official recognition, can still effectively operate on campus, noting that the administration has ignored requests by the group to secure rooms for meetings and tables at campus events.
This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law at George Washington University Law School; David Masci, Senior Writer/Editor at Pew Research Center; and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.

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More than 55 years after the Supreme Court issued its landmark ruling striking down school-sponsored prayer, Americans continue to fight over the place of religion in public schools. Questions about religion in the classroom no longer make quite as many headlines as they once did, but the issue remains an important battleground in the broader conflict over religion's role in public life.

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Plaintiffs claimed that the required use of certain reading textbooks violated their First Amendment right to the free exercise of religion. The district court's judgment granted injunctive relief, which ordered defendants to excuse objecting plaintiff students from participating in reading classes where the textbooks were used, and damages in favor of plaintiffs.

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Rule:

It is clear that governmental compulsion either to do or refrain from doing an act one's religion forbids or requires or to affirm or disavow a belief one's religion forbids or requires, is the evil prohibited by the Free Exercise Clause of the First Amendment .

Facts:

Plaintiffs, a group of public school students and their parents, brought an action under 42 U.S.C.S. § 1983 , against defendants, a board of education, individual members of the board, and the Commissioner of Education of the State of Tennessee. Plaintiffs claimed that the required use of certain reading textbooks violated their First Amendment right to the free exercise of religion. The district court's judgment granted injunctive relief, which ordered defendants to excuse objecting plaintiff students from participating in reading classes where the textbooks were used, and damages in favor of plaintiffs. Defendants sought review. On appeal, the court reversed the judgment and remanded. The court held that plaintiffs' right to free exercise of their religion had not been violated by defendants because plaintiffs had not shown that the reading textbooks had a coercive effect that operated against the practice of their religion.

Issue:

Does a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds, constitute a burden on the free exercise of that person's religion as forbidden by the First Amendment ?

Answer:

No.

Conclusion:

In this case the district court erroneously applied decisions based on governmental requirements that objecting parties make some affirmation or take some action that offends their religious beliefs. In Sherbert the burden on the plaintiff's right of free exercise consisted of a governmental requirement that she either work on her Sabbath Day or forfeit her right to benefits. Similarly, in Thomas the plaintiff was denied a benefit for refusing to engage in the production of armaments. In each case the burden on the plaintiff's free exercise of religion consisted of being required to perform an act which violated the plaintiffs' religious convictions or forego benefits. Ms. Sherbert was not merely exposed to the view that others in the work force had no religious scruples against working on Saturdays and Mr. Thomas was not merely exposed to government publications designed to encourage employees to produce armaments. In each case there was compulsion to do an act that violated the plaintiffs' religious convictions. In Hobbie v. Unemployment Appeals Commission of Florida , 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987) , the Supreme Court reaffirmed its holdings in Sherbert and Thomas, emphasizing that in both cases there was compulsion either to do an act that was prohibited by the plaintiff's religion or to modify his or her behavior and violate religious beliefs. In Spence this court upheld a conscientious objector's right not to be required to participate in his high school's ROTC program. The court found that Spence's claim resembled Sherbert's "since it compels the conscientious objector either to engage in military training contrary to his religious beliefs, or to give up his public education." 465 F.2d at 799 . It is clear that it was being compelled to engage in military training, not being exposed to the fact that others do so, that was found to be an unconstitutional burden.

Since the Court 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, the Court does 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 .
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Mozert v. Hawkins County | Case Brief for Law School | LexisNexis

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It is clear that governmental compulsion either to do or refrain from doing an act one's religion forbids or requires or to affirm or disavow a belief one's religion forbids or requires, is the evil prohibited by the Free Exercise Clause of the First Amendment .

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U.S. District Court for the Eastern District of Tennessee - 647 F. Supp. 1194 (E.D. Tenn. 1986)
October 24, 1986

Bob MOZERT, et al.
v.
HAWKINS COUNTY PUBLIC SCHOOLS, et al.
(Dr. Robert McElrath, Commissioner of Education of the State of Tennessee, Intervening Defendant).

Civ. No. 2-83-401.

United States District Court, E.D. Tennessee, Northeastern Division.

October 24, 1986.

*1195 Michael P. Farris, Cimron Campbell, Joy P. Jowdy and Jordan Lorence, Washington, D.C. also Larry E. Parrish and Fred McDonald, Memphis, Tenn., for plaintiffs.

W.J. Michael Cody, Atty. Gen. and Reporter, William H. Farmer, Advocate Gen., Michael W. Catalano, Deputy Atty. Gen., Charles Hampton White, Nashville, Tenn., Philip L. Boyd, Rogersville, Tenn., Timothy B. Dyk, Wilmer Cutler & Pickering, Washington, D.C., and N.R. Coleman, Jr. and Ronald W. Woods, Greeneville, Tenn., for defendants.

HULL, Chief Judge.

This is a civil rights action, 42 U.S.C. § 1983, seeking injunctive relief and money damages for the alleged violation of the plaintiffs' First Amendment right to the free exercise of religion. This controversy stems from the compulsory use of the 1983 edition of the Holt, Rhinehart and Winston basic reading series (Holt series) in the Hawkins County Public Schools. The plaintiffs, "fundamentalist" Christian school children and their parents, claim that their religion requires that they not be exposed to the Holt series because its contents are offensive to their religious beliefs. The relief sought by plaintiffs includes money damages for the expenses incurred in sending their children to private school and an order of the Court requiring the school system to accommodate their religious beliefs by providing alternative reading instruction.

It is important to note at the outset that the plaintiffs are not requesting that the Holt series be banned from the classroom, nor are they seeking to expunge the theory of evolution from the public school curriculum. Despite considerable fanfare in the press billing this action as "Scopes II", it bears little relation to the famous "monkey trial" of 1925. These plaintiffs simply claim that they should not be forced to choose between reading books that offend their religious beliefs and foregoing a free public education.

The defendants, including intervening defendant, Dr. Robert McElrath, Commissioner of Education for the State of Tennessee, take the position that broad state interests preclude the fashioning of educational alternatives for the plaintiffs. They contend that any attempt to provide acceptable textbooks for the plaintiffs would violate the Establishment Clause of the First Amendment through excessive state entanglement with religion.

This action juxtaposes two of our most essential constitutional liberties the right of free exercise of religion and the right to be free from a religion established by the state. Moreover, it implicates an important state interest in the education of our children. The education of our citizens is essential to prepare them for effective and intelligent participation in our political system and is essential to the preservation of our freedom and independence. See, Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).

In January 1983, pursuant to state law,[1] a textbook selection committee was appointed by the Hawkins County school district to select a basic reading series to be used from kindergarten through the eighth grade. After evaluating several series of textbooks over a number of months, the committee recommended purchase of the Holt series. This recommendation was unanimously approved by the Hawkins County Board of Education (Board) at its regular meeting on May 12, 1983. The books were purchased, and the Hawkins County schools began using them at the start of the 1983 school year.

Before the first month of school passed, however, plaintiff Vicki Frost, who had three children attending the Hawkins County public schools, discovered that the sixth grade reading textbook contained material that offended her family's religious beliefs. Mrs. Frost and a friend, Jennie Wilson,[2] organized a meeting which was held September 1, 1983, at the Church Hill Middle School. At this meeting, which was attended by two Hawkins County school principals, Mrs. Frost, Mrs. Wilson and others objected to the sixth grade reading textbook.

In September 1983, a group of Hawkins County residents, including most of the plaintiff-parents, formed an organization named Citizens Organized for Better Schools (COBS). Members of COBS spoke at regularly scheduled school board meetings on September 8, October 13, and November 10, 1983, objecting, among other things, to the use of the Holt series. The COBS members apprised the Board that they found the Holt series offensive to their religious beliefs and presented petitions requesting removal of the Holt series from the schools.

At various times during the Fall of 1983, six plaintiff-families[3] contacted Mr. Salley, principal of Church Hill Middle School, and requested that their children be provided with alternative reading arrangements. Principal Salley apparently acceded to the requests, and seven plaintiff-students at Church Hill Middle School were provided alternative reading arrangements.[4] Two other plaintiff-students were provided alternative arrangements at two separate elementary schools in the district.[5]

The Meades and the Bakers, two other plaintiff-families, sought alternative reading arrangements for their children at Carter's Valley Elementary School. Principal MacMillan refused a proposal for an alternative text, and no alternative arrangements were allowed.

Despite presentations by two plaintiff-parents, the Board unanimously adopted, without discussion, a resolution requiring teachers to "use only textbooks adopted by the Board of Education as regular classroom textbooks"[6] at the November 10, 1983, school board meeting. In compliance with this resolution, school officials at Church Hill Middle School told seven of the student-plaintiffs that they would no longer be allowed to use an alternative reader. At that point, these students refused, on religious grounds, to read the Holt series or to attend the reading classes in which the Holt series was used. They were suspended from school for three days as a result. On November 22, 1983, they were again suspended, this time for ten (10) days, because they continued to refuse to attend reading class and/or read the Holt books.[7] Following this rigorous enforcement of the Board's mandate, many of the student-plaintiffs withdrew from public schools and enrolled in private, Christian schools.

Plaintiffs filed this suit on December 2, 1983. On March 15, 1984, this Court granted summary judgment in favor of defendants. This Court found that the plaintiffs' religious beliefs were sincere and that certain passages in the Holt series might be offensive to them, but that, because the books appeared neutral on the subject of religion, they did not violate the plaintiffs' constitutional rights. Mozert v. Hawkins County Public Schools, 582 F. Supp. 201, 202 (E.D.Tenn.1984), rev'd, 765 F.2d 75 (6th Cir. 1985).

The Sixth Circuit reversed this finding and remanded, instructing this Court to determine whether the defendants infringed on the plaintiffs' free exercise rights, whether a compelling state interest would justify such infringement if any, and whether a less restrictive means could accommodate both plaintiffs and defendants without running afoul of the Establishment Clause. Mozert v. Hawkins County Public Schools, 765 F.2d at 78 (6th Cir.1985).

With the agreement of the parties, the Court determined that the issue of liability should be decided by the Court without intervention of a jury and that the issue of damages would be tried by a jury at a later date if necessary. The hearing on the issue of liability began on July 14, 1986. Based upon the evidence and testimony offered at trial, and the record as a whole, the Court makes the findings of fact and conclusions of law which follow.

"When deciding a free exercise claim, the courts apply a two-step analysis. First, it must be determined whether the government action does, in fact, create a burden on the litigant's exercise of his religion. If such a burden is found, it must then be balanced against the governmental interest, with the government being required to show a compelling reason for its action." Mozert, 765 F.2d at 78. In addition, it must be determined whether the state has acted in a way which constitutes "the least restrictive means of achieving [the] compelling state interest," as measured by its impact upon the plaintiffs. Thomas v. Review Board, 450 U.S. 707, 718, 701 S. Ct. 1425, 1432, 67 L. Ed. 2d 624 (1981).

The plaintiffs assert the free exercise rights of both the students and the parents, who assert that their religion compels them not to allow their children to be exposed to the Holt series. Plaintiffs have also alleged that the Board's policy interferes with the inherent right of the parents to "direct the upbringing and education of children under their control...." Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925), see also, Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).

In deciding whether plaintiffs' free exercise rights have been impermissibly burdened by the state, the Court must first determine whether the beliefs are religious and whether they are sincerely held by the individual asserting them. "[T]o have the protection of the Religion Clauses the [plaintiffs'] claims must be rooted in religious belief," Yoder, at 215, 92 S. Ct. at 1533; and, although the truth of a belief "is not open to question, there remains the significant question whether it is `truly held.'" U.S. v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733 (1965).

Fortunately for the Court, these subtle threshold determinations were made prior to trial. The parties stipulated both that the plaintiffs' beliefs were religious and that they were sincerely held. Joint Stipulation 9. However, before the Court *1198 may turn to the issue of whether the exercise of these beliefs is burdened by the Board's requirement that all students read from the Holt series, the defendants would have the Court decide whether these beliefs are central to the plaintiffs' faith. The defendants argue that unless the beliefs are central to the plaintiffs' faith, they are not entitled to protection under the Free Exercise Clause of the First Amendment.

In making this assertion, the defendants rely on certain language in Yoder, supra, in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and also on two Sixth Circuit cases. Lakewood Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303 (6th Cir.1983), cert. denied, 464 U.S. 815, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983); and Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir.1980), cert. denied, 449 U.S. 953, 101 S. Ct. 357, 66 L. Ed. 2d 216 (1980).

In Yoder, the Court found that compulsory school attendance past the age of 14 "contravenes the basic religious tenets and practices of the Amish faith." (emphasis added). Yoder, supra at 218, 92 S. Ct. at 1534. In Sherbert, the Court found that in refusing to work on Saturday, a Seventh-Day Adventist followed a " cardinal principal of her religious faith." (emphasis added). Sherbert at 406, 83 S. Ct. at 1795. In both of these cases, the Court did note that the belief or practice at odds with a state regulation was one of utmost importance to, or about which their was no disagreement within, the plaintiff's religion.

However, at no point did the Court hold that such a finding must be made in order to prevail on a free exercise claim. Rather, as mentioned above, the concern appears to be simply that the belief or action be rooted in religion. Accord, Thomas v. Review Board, supra, at 713, 101 S. Ct. at 1429. That Saturday worship is a "cardinal" principal of the Seventh Day Adventist religion simply makes it easy to find that the belief is religious. No Supreme Court decision has turned on the issue of whether a particular belief was central to the believer's faith. The two Sixth Circuit cases relied upon by defendants also support the "rooted in religion" standard and do not mandate a judicial determination of the relative doctrinal significance of the beliefs at issue.

In Lakewood, the desire to construct a church building on the particular parcel of land zoned residential had absolutely no basis in the congregation's faith. Their religion did not compel them to build a church on that parcel of real estate. Indeed, the court determined that the building of a church, either in the residential district or anywhere else, had no religious or ritualistic significance for the Jehovah's Witnesses. Thus, it is clear that no evaluation was made by the court of the importance of the alleged religious action for which protection was sought. The case turned upon the fact that the act of building a church was not "integrally related" to any underlying religious belief of the plaintiffs.

In Sequoyah, certain Cherokee Indians sought to enjoin the flooding of the Little Tennessee River because it would destroy sacred burial grounds which some felt compelled to visit and/or preserve. Although the court stated that the claim of centrality of the land to the practice of the traditional Cherokee religion was missing, 620 F.2d at 1164, the case turned upon the fact that the plaintiffs' objections were based primarily upon a fear that their cultural heritage would suffer if these "sacred" grounds were lost. "The overwhelming concern of the [plaintiffs] appears to be related to the historical beginnings of the Cherokees and their cultural development." Id.

The plaintiffs believe that they must not allow their children to be exposed to the content of the Holt series. The Court is of the opinion that it should determine whether this belief is essentially religious and not whether it is a central tenent of the plaintiffs' faith. And this determination should be made despite the fact that many people holding more orthodox religious beliefs might find the plaintiffs' beliefs inconsistent, *1199 illogical, incomprehensible, and unacceptable. Based on the stipulations of the parties and the proof offered at trial, therefore, the Court FINDS that the plaintiffs' beliefs are sincerely held religious convictions entitled to protection under the Free Exercise Clause of the First Amendment.

The parties have stipulated that the plaintiffs find certain material in the Holt series offensive to their beliefs. Joint Stipulation 55. Testimony at trial reinforced this position. The representative plaintiff-parents clearly testified that the material objected to was offensive "in the context of the Holt series." The plaintiffs perceive certain objectionable themes running throughout the Holt series. For example, the Holt series contains a definite feminist theme,[8] and the plaintiffs have a religious objection to stories which appear to denigrate the differences between the sexes.

It appears to the Court that many of the objectionable passages in the Holt books would be rendered inoffensive, or less offensive, in a more balanced context. The problem with the Holt series, as it relates to the plaintiffs' beliefs, is one of degree. One story reinforces and builds upon the others throughout the individual texts and the series as a whole. The plaintiffs believe that, after reading the entire Holt series, a child might adopt the views of a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian, or an advocate of a "one-world government".

Plaintiffs sincerely believe that the repetitive affirmation of these philosophical viewpoints is repulsive to the Christian faith so repulsive that they must not allow their children to be exposed to the Holt series. This is their religious belief. They have drawn a line, "and it is not for us to say that the line [they] drew was an unreasonable one." Thomas, supra, at 715, 101 S. Ct. at 1430.

Having made these findings, we must determine whether the state's action has burdened plaintiffs' free exercise of their religious beliefs. The applicable test was set forth in Thomas, supra, at 717-18, 101 S.Ct. at 1431-32: "Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, ... a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial."

In Thomas, a Jehovah's Witness resigned his employment on religious grounds after his employer transferred him to a department that manufactured armaments. The state denied unemployment compensation benefits. The Supreme Court held that this violated his free exercise rights because it put pressure on the plaintiff to either violate his religious beliefs or forego the otherwise available public benefit.

In Sherbert, a Seventh-Day Adventist refused to work on Saturdays because of her religious convictions. Following her discharge, the state denied her unemployment compensation benefits. The Supreme Court, based upon the reasoning subsequently used in Thomas, held that this violated her free exercise rights.

In Spence v. Bailey, 465 F.2d 797 (6th Cir.1972), a high school student, who had a religiously based conscientious objection to war, refused to attend state required ROTC training.[9] The school refused to award Spence a diploma. The Sixth Circuit held that this violated his free exercise rights "since it compels the conscientious objector either to engage in military training contrary to his religious beliefs, or to give up his public education." Id. at 799.

In Moody v. Cronin, 484 F. Supp. 270 (C.D.Ill.1979), Pentecostal children refused to participate in co-educational physical education classes because of their religious objection to exposure to the opposite sex in "immodest attire." The school mandated that they attend these classes "under penalty of suspension, expulsion, denial of credits for graduation, and other discipline." Id. at 272. Based upon reasoning like that applied in Spence, the district court found that the children's free exercise rights had been violated. Cf., Grove v. Mead School Dist. No. 354, 753 F.2d 1528 (9th Cir.1985), cert. denied, ___ U.S. ___, 106 S. Ct. 85, 88 L. Ed. 2d 70 (1985).[10]

On the basis of the foregoing, it seems hardly possible to question the fact that the plaintiffs' free exercise rights have been burdened. Plaintiffs' religious beliefs compel them to refrain from exposure to the Holt series. The Board has effectively required that the student-plaintiffs either read the offensive texts or give up their free public education. This case is clearly in line with Thomas, Sherbert, and their progeny. Accordingly, the Court FINDS that the plaintiffs' free exercise rights have been burdened by the school board policy.

"The mere fact that the [plaintiffs'] religious practice is burdened by a governmental program does not mean that an exemption accommodating [their] practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest." Thomas at 718, 101 S. Ct. at 1432. Whether that burden is impermissible or not will turn on the discussion to follow.

The state interest implicated in this action is its interest in the education of its young. In order for a state's interest to justify uniform application of a regulation which burdens an individual's free exercise rights, it must be "compelling," Thomas, "overriding," U.S. v. Lee, 455 U.S. 252, 258, 102 S. Ct. 1051, 1055, 71 L. Ed. 2d 127 (1982), "of the highest order," Yoder at 215, 92 S. Ct. at 1533, and "especially important," Bowen v. Roy, ___ U.S. ___, ___, 106 S. Ct. 2147, 2167, 90 L. Ed. 2d 735 (1986) (O'Connor, J. concurring in part and dissenting in part).[11]

No party disputes that the state's interest in education meets these various tests. Providing public schools ranks at the very apex of the function of a state. Yoder, supra at 213.

*1201 However, in the instant case, the state, acting through its local school board, has chosen to further its legitimate and overriding interest in public education by mandating the use of a single basic reading series. The Court has found that compulsory use of this reading series burdens the plaintiffs' free exercise rights. In order to justify this burden, the defendants must show that the state's interest in the education of its children necessitates the uniform use of the Holt reading series that this uniformity is essential to accomplishing the state's goals. Therefore, the Court must decide whether the state can achieve literacy and good citizenship for all students without forcing them to read the Holt series.

It seems obvious that this question must be answered in the affirmative. The legislative enactments of this state admit as much. Although Tennessee has manifested its compelling interest in education through its compulsory education law, it has, by allowing children to attend private schools or to be taught at home, also acknowledged that its interests may be accomplished in other ways and may yield to the parental interest in a child's upbringing. Moreover, the fact that the state has approved several basic reading series for use in the Tennessee public schools tells us something of the expendability of any particular series.

In insisting upon the necessity of uniformity, the defendants point to legitimate concerns about the difficulty of administering an alternative reading program. The Court agrees that uniformity would make the testing, grading, and teaching of reading more manageable. However, it is clear from the evidence at trial that the state's interest in uniformity is by no means absolute. Many of the expert educators who appeared at trial indicated that teaching is best accomplished through individualized instruction.[12]

The defendants also insist that any accommodation of the plaintiffs is impossible. This position is based, in part, on the plaintiffs' lists of objections to the Holt series. Exhibits 22-37. It is true that many of the plaintiffs' objections suggest that other elements of the curriculum besides the reading program could easily be considered offensive to their beliefs. However, as indicated earlier, it is the Court's perception that the plaintiffs have drawn a line in regard to their religiously mandated action. The Holt series is on one side of the line as intolerable, and apparently the balance of the books and school curriculum remain, at this point, on the other side of the line. The plaintiffs have not made multi-subject, multi-text objections; they have objected to the Holt reading series. The defendants may not justify burdening the plaintiffs' free exercise rights in this narrow case on the basis of what the plaintiffs might find objectionable in the future.

Moreover, proof at trial demonstrated that accommodating the plaintiffs is possible without materially and substantially disrupting the educational process. See, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 509, 89 S. Ct. 733, 737, 21 L. Ed. 2d 731 (1969). The students at the middle school were provided with an alternative reading arrangement for a period of several weeks. There was no testimony at trial that those arrangements resulted in any detriment to the student-plaintiffs. In fact, those children still received above average grades for that period. Even after the School Board mandate, compromise arrangements were worked out with some of the plaintiffs.[13]

A related concern of the defendants is that if plaintiffs are allowed an alternative, the Court will have "opened the floodgates" to a barrage of such requests. The state argues that "[t]o permit individual teachers, students, parents or ministers to choose the textbook of their liking would inescapably result in widespread chaos not only within the Hawkins County School System but also every public school system within the State of Tennessee."[14]

While this is a very legitimate concern, such a scenario seems unlikely to occur. Proof at trial indicated that objections such as those of the plaintiffs have never, to the memory of Hawkins County school officials, been raised in the past. Dr. J. Gordon Melton testified that, although there are a variety of sects in and around Hawkins County, the area is relatively homogeneous from a religious standpoint.[15] Accommodating the beliefs of the small group of students involved in this case probably would not wreak havoc in the school system by initiating a barrage of requests for alternative materials.

While the Court must be sensitive to the widespread implications of its decisions, it must also limit its decisions to the facts of the case before it. Bender v. Williamsport Area School District, ___ U.S. ___, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986). The case before the Court is a narrow one. The plaintiffs are objecting, on religious grounds, to the mandated use of the Holt series in the Hawkins County public schools. The Court has already found that the plaintiffs' sincerely held religious beliefs are burdened by the defendants' requirement. In order for the plaintiffs to be entitled to any judicial relief, the court must also find that no compelling state interest justifies this burden on the plaintiffs and that the state's interests can be served by less restrictive means. The proof at trial overwhelmingly supports such a finding.

Accordingly, the Court FINDS further that, while the State of Tennessee has a compelling and overriding interest in the education of its children and the literacy of its citizens, this interest can be accomplished by less restrictive means. The uniform, compulsory use of the Holt series in the Hawkins County public schools is by no means essential to furthering the state's goals.

Given these findings, the Court must now consider the plaintiffs' demand that they be afforded alternative reading texts and the defendants' concern that such relief would violate the Establishment Clause.

Evidence at trial indicated that providing alternative texts would require additional preparation by existing teachers or the hiring of part-time reading tutors. However, it was clear that this accommodation could be achieved without substantially disrupting the education process and without substantially inconveniencing either the plaintiff-students or the rest of the student body. Moreover, such an accommodation might promote a spirit of religious tolerance in the school system and impress upon the student body the high regard this society has for religious freedom.

On the other hand, considerable evidence indicated that no single, secular reading series on the state's approved list would be acceptable to the plaintiffs without modifications. Reading assignments might have to be tailored to the plaintiffs' needs, and the average reading teacher might not readily recognize those portions of the texts which offend the plaintiffs' beliefs. The defendants are rightly concerned that any accommodation of the plaintiffs in the schools would have the effect of advancing a particular religion and would involve an excessive entanglement between the state and religion. See, Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). It is hard to imagine any reading program for the plaintiffs offered at the schools which would not present Establishment Clause problems.

Under these circumstances, the Court FINDS that a reasonable alternative which could accommodate the plaintiffs' religious beliefs, effectuate the state's interest in education, and avoid Establishment Clause problems, would be to allow the plaintiff-students to opt out of the school district's reading program. The State of Tennessee has provided a complete opt-out, a total curriculum alternative, in its home schooling statute. T.C.A. § 49-6-3050. The Court perceives that this alternative could also work effectively for a single subject. Allowing the student-plaintiffs to opt out of reading class would relieve the school system of any burden that would have been caused by providing alternative teaching arrangements and would relieve the plaintiffs of the burden on their religious freedom. Although it will require extra effort on the part of the plaintiff-parents, these parents have demonstrated their willingness to make such an effort as the price of accommodation in the public school system.

As the Court envisions the opt-out program, each of the student-plaintiffs would withdraw to a study hall or to the library during his or her regular reading period at school and would study reading with a parent later at home. The home schooling portion of the child's education would be proportionally subject to the provisions of the statute. T.C.A. § 49-6-3050(b). The child's reading proficiency would be rated by the standardized achievement tests used by the state. If deficiencies develop, the parents and school officials should confer to facilitate improvement. The Court finds that these children are bright and capable of completing such a program without serious detriment to their reading skills or citizenship. The specifics of this program will best be developed by the professional educators and the parents.

The home schooling opt-out does not contravene the Establishment Clause. There is neither state sponsorship, financial support, nor active involvement of the sovereign in religious activity. This holding is in accordance with Spence, supra, and Moody, supra, which granted similar relief without an Establishment Clause problem.

Accordingly, the defendants are hereby ENJOINED from requiring the student-plaintiffs to read from the Holt series and ORDERED to allow the student-plaintiffs to attend the Hawkins County public schools without participating in the course of reading instruction, as long as the parents submit written notice of their intent to provide home school reading instruction in accordance with T.C.A. § 49-6-3050. During the normal reading period, the student-plaintiffs shall be excused from the classroom and provided with suitable space in the library or elsewhere for a study hall. No student shall be penalized for exercising this option.

This opinion shall not be interpreted to require the school system to make this option available to any other person or to these plaintiffs for any other subject. Further accommodations, if they must be made, will have to be made on a case-by-case basis by the teachers, school administrators, Board, and Department of Education in the exercise of their expertise, and failing that, by the Court.

Finally, we turn to the individual defendants' assertion that their good faith immunity bars the plaintiffs' claim for damages. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). The standard for invoking the good faith defense is objective, not subjective.

In the case at bar, where Free Exercise rights clash with Establishment Clause protections, considerable doubt existed to whether the defendants' actions violated clearly established constitutional rights. This Court's initial appraisal of the situation was that the constitution did not protect the plaintiffs from exposure to offensive ideas and that the Board was not in violation of the plaintiffs' rights as long as the Holt series was neutral on the subject of religion. While the application of the sequential reasoning required by the Sixth Circuit's on remand has now lead the Court to a different conclusion, the individual defendants cannot be expected to have anticipated this ruling and must be accorded good faith immunity from money damages.

Accordingly, the plaintiffs' claim for damages against defendants Cloud, Bailey, McKee, Elkins, Silvers, Price, Dykes, and Salley is hereby DISMISSED.

The Clerk will notify the parties of the date for a hearing on damages against the Hawkins County Board of Education.

In summary, the Court has made the following findings of fact and conclusions of law:

(1) The plaintiffs have sincerely held religious beliefs which are entitled to protection under the Free Exercise Clause of the First Amendment and which are offended by certain recurring themes in the Holt series.

(2) In forcing the plaintiff-students to read from the Holt series or to forfeit a free public education, the defendants have burdened the plaintiffs' right of free exercise of their religion.

(3) The State of Tennessee and the Hawkins County Board of Education have a legitimate, compelling, and overriding interest in the education of public school students; but this interest does not necessitate uniform use of the Holt series and can be achieved by less restrictive means.

(4) For this reason, the plaintiffs' civil rights have been violated, and they are entitled to both injunctive relief and money damages.

(5) The defendants cannot accommodate the plaintiffs' needs within the context of the school system without risk of violating the Establishment Clause of the First Amendment.

(6) The plaintiffs are therefore entitled to opt out of the Hawkins County public school reading program while still enjoying the benefit of the rest of the curriculum (with appropriate provisions for home instruction according to state law).

(7) The individual defendants are protected from any financial liability to the plaintiffs on the basis of their qualified good faith immunity.

(8) And finally, the plaintiffs are entitled to a hearing on damages, to be assessed against the Hawkins County School Board, for any harm the plaintiffs may have suffered as a proximate result of the Board's interference with their First Amendment rights.

NOTES

[1] T.C.A. § 49-6-2207.

[2] Mrs. Wilson is apparently the grandmother of plaintiffs Heather and Vicky Baker.

[3] The Frosts, Mozerts, Whitakers, Eatons, Couches and Marshalls.

[4] The arrangements varied from child to child. Usually the teacher would assign a passage from another reader, and the student would go to another room to read.

[5] Sarah Frost at Church Hill Elementary School and Samuel Couch at Mr. Carmel Elementary School.

[6] Joint Stipulation of Fact (Court File No. 205 at ¶ 44).

[7] On December 8, student-plaintiffs then Gina Marshall and student-plaintiff Travis Mozert were suspended a third time, for an additional ten (10) days. Gina Marshall was allowed to return to school before the third suspension period ended and was not required to read the Holt series.

[8] There is no question that the reading texts teach more than just how to read.

[9] The state required every student to take one year of physical education or ROTC. No physical education classes were offered for males at Spence's high school. He was thus faced with state requirement that he attend ROTC.

[10] In Grove, a student objected on religious grounds to reading The Learning Tree, which was assigned in her high school English literature class. Her teacher assigned another book and allowed her to leave the room during discussion of the offensive text. The student and her mother brought suit seeking removal of the book from the school, alleging that it violated the student's free exercise rights as well as the Establishment Clause. Because the school allowed her the option of foregoing exposure to the offensive text, the court found that there was no coercion against her free exercise rights. "Plaintiffs allege that they believe `eternal consequences' result to them and their children from exposure to The Learning Tree or discussion of it. That allegation would probably be sufficient to present a free exercise question if Cassie Grove had been compelled to read the book or be present while it was discussed in class." (Canby, J., concurring at 1541-2).

[11] Defendants have indicated that in a case such as the present action, challenging the denial of otherwise uniformly provided benefits, a lesser showing of state interest may be required. This is based upon the Chief Justice's opinion in Bowen. Chief Justice Burger's opinion was the opinion of the Court in that case, but it is the majority opinion only so far as parts I and II are concerned. It is in part III that the pronouncements relied upon by the defendants are found. Part III of the opinion finds accord with only two other members of the court. Chief Justice Burger states therein that, when a government regulation "indirectly and incidentally calls for a choice between securing a government benefit and adherence to religious beliefs," Bowen, 106 S. Ct. at 2155, "the Government meets its burden when it demonstrates that [the] challenged [regulation] ..., neutral and uniform in application, is a reasonable means of promoting a legitimate public interest." Id. 106 S. Ct. at 2156. This Court finds itself in agreement with Justice O'Connor, who notes that the test enunciated by the Chief Justice "has no basis in precedent." (O'Connor, J. concurring in part and dissenting in part 106 S.Ct. at 2166).

[12] Mrs. Evelyn Rodriguez, who has taught elementary school in Hawkins County for ten or eleven years, testified that she not only divides her reading class into two or three groups by reading level, but that she always uses additional texts and materials other than the basic reader. As much as possible, she works with the students on their individual reading level, particularly if a child is below grade level in reading skills. In addition, children requiring special instruction in reading leave the classroom during the reading period and go to a reading lab.

[13] Steve Whittaker was allowed to return to school after the suspensions and continue reading from an alternative book until the first of the year. Thereafter, Steve participated with the rest of his class upon the assurance from his teacher "that she wouldn't put emphasis on the stories that were objectionable to us and violated our religious beliefs." TR. at 925. His teacher also wrote notes about some stories on Steve's worksheets such as, "Don't believe what's in the content of this story." Id. at 926. The Whitakers could not afford to send Steve to a private school.

Then student-plaintiff Gina Marshall was allowed to return to school after the suspensions without participating in the Holt series. She simply worked on English in the accompanying workbook. Her teacher put an "x" through the portions dealing with stories from the Holt series.

[14] Pretrial Brief of defendant Robert McElrath, Commissioner of Education of the State of Tennessee, at 9.

[15] TR. at 1552, 1555. Churches in the area are primarily Protestant.

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Mozert v. Hawkins County Public Schools, 647 F. Supp. 1194 (E.D. Tenn. 1986)

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U.S. District Court for the Eastern District of Tennessee - 647 F. Supp. 1194 (E.D. Tenn. 1986) October 24, 1986 Bob MOZERT, et al. v. HAWKINS COUNTY PUBLIC SCHOOLS, et al. (Dr. Robert McElrath, Commissioner of Education of the State of Tennessee, Intervening Defendant). Civ. No. 2-83-401. United States District Court, E.D.

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Nos. 86-6144, 86-6179, 86-6180 and 87-5024.

United States Court of Appeals,

Sixth Circuit.

Argued July 9, 1987.

Rehearing and Rehearing En Banc Denied Oct. 5, 1987.

C.A.6 (Tenn.),1987.

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.

We repeat and reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion."

Here, ... we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means.

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 also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and attitude of mind.

Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent--a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

[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.

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.

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.

Were the free exercise clause violated whenever governmental activity is offensive to or at variance with sincerely held religious precepts, virtually no governmental program would be constitutionally possible.

The lesson is clear: governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise. An actual burden on the profession or exercise of religion is required.

In short, distinctions must be drawn between those governmental actions that actually interfere with the exercise of religion, and those that merely require or result in exposure to attitudes and outlooks at odds with perspectives prompted by religion.

To establish a violation of that clause [Free Exercise], a litigant must show that challenged state action has a coercive effect that operates against a litigant's practice of his or her religion.

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.

[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.

The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.

FN1. Appellee parents have indicated that they would not object to much of the material in the Holt readers if it were balanced by material supporting their religious beliefs. To the extent they assert a burden from the omission of material, I question how an omission can constitute a burden.

FN2. Last term the Court recognized that public school officials have considerable discretion in structuring their curriculum to achieve these results. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Court recognized that "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with a legislative policy." Id. at 475, 97 S.Ct. at 2383 (footnote omitted). The Maher Court acknowledged its decision in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), where the Court upheld a parent's right to have his child taught a particular foreign language, and in Pierce v. Society of Sisters, 268 U.S.510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), where it upheld a parent's right to send his child to private school. Nevertheless, the Court stated:

432 U.S. at 476-77, 97 S.Ct. at 2384.

FN3. It is important to note that with respect to some of appellees' objections, any required discussion of objectionable materials would violate appellees' religious beliefs. It is not the mere "unbalanced treatment" of these materials that appellees find offensive.

FN4. In United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), the Court, in an unanimous opinion, considered whether imposition of Social Security taxes on the Amish violated the free exercise clause because the Amish contended that it was against their religious beliefs to receive public insurance benefits and pay into public insurance funds. Although finding that participation in the program burdened the free exercise of their religion, the Court concluded that participation in the program was essential to accomplish the overriding governmental interest. Id. at 257-58, 102 S.Ct. at 1055. The Court emphasized that mandatory participation in the social security system was indispensable to the vitality of the system, and if participation were voluntary, it would undermine the effectiveness of the program. Additionally, the Court stated that the social security system could not accommodate exceptions that could arise from a large number of religious beliefs. Id. at 260, 102 S.Ct. at 1056.

has as good a right as this plaintiff to demand that the courts compel the schools to sift out of their teaching everything inconsistent with its doctrines. 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.

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, ante, at 1063-64.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, ante at 1064, 1069-70.

FN1. I note that the amicus brief of the American Jewish Committee and other religious leaders agrees with plaintiffs on two points critical to, and rejected by, the court's opinion. First, that "the compelled use of a reading curriculum can burden Free Exercise Rights." Second, that "the school board's response to appellees' claims burdened their rights."

He drew a circle that shut me out--

Heretic, Rebel, a thing to flout.

But Love and I had the wit to win:

We drew a circle that took him in! [FN2]

FN3. A different situation would be presented if the purpose or primary effect of any accommodation were to be the advancement of plaintiffs' religion. Ante, at 1065. I see no evidence of such purpose or effect from the accommodation in this case.

FN4. See Pub. Util. Comm. of D.C. v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952).

FN5. New Catholic Encyclopedia, Vol. 7, pp. 434-35; Vol. 2, pp. 699-701 (McGraw-Hill, 1967).

FN6. R.A. Burke, What is the Index, pp. 33, 58-9, 88 (Milwaukee, 1952).

FN8. I agree with the court's opinion that it would be unconstitutional to force students to participate in what is, for them, a religious ritual contrary to their beliefs. Ante, at 1064.

FN10. In a dispute in Panama City, Florida, teachers of a "critical reading" approach specifically allowed students to opt-out of reading allegedly offensive books in English class. There the opt-out was a way to try to get the school board and objecting parents to allow the use of the books the teachers favored. Washington Post, January 4, 1987, Magazine section at pp. 10, 13-14.

FN11. See City and County Data Book, p. 515-16 (GPO, 1983); Statistical Abstract of United States, table 215 (GPO, 107th ed. 1987).

FN12. As guaranteed by the Supreme Court's decision in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

FN14. Plaintiffs are, of course, free to work politically and by education to change the school curriculum, just as others worked and succeeded in making the changes to which plaintiffs object.

827 F.2d 1058, 56 USLW 2142, 102 A.L.R. Fed. 497, 41 Ed. Law Rep. 473

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Nos. 86-6144, 86-6179, 86-6180 and 87-5024. United States Court of Appeals, Sixth Circuit. Argued July 9, 1987. Rehearing and Rehearing En Banc Denied Oct. 5, 1987. C.A.6 (Tenn.),1987. Very basically, I object to the Holt, Rhinehart [sic] Winston series as a whole, what the message is as a whole.

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Mozert v. Hawkins County Public Schools (1987)