Smith v. Board of School Com'rs of Mobile County

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAND, Chief Judge.

History of Case

For one to have a reasonable understanding of the present. posture of this lawsuit, some attention should be given to its history.

Original Case

On May 28,1982 Ishmael Jaffree, individually, and as father and next friend of his three children, brought an action against the Board of School Commissioners of Mobile County, its Superintendent, various principals and teachers seeking a declaratory judgment and restraining order against the defendants from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile public schools. Jurisdiction was invoked pursuant to Title 28, § 1343(3) and (4) and §§ 2201 and 2202. The cause of action, it was alleged, arose under the First and Fourteenth Amendments to the United States Constitution and pursuant to Title 42, §§ 1983 and 1988.

In June the action was amended in order to claim class action privileges.

The original complaint was answered on June 25, 1982.

On June 30,1982 the plaintiffs filed their second amended complaint “intending to augment the original, not supplanting it,” by adding as defendants the Governor of the State of Alabama, the Attorney General, the individual members of the State Board of Education, and the Superintendent of the State Board of Education.

The stated purpose of this amendment was to attack certain Alabama Code sections and to enjoin implementation of Senate Bills 61 and 8, adopted by the legislature in 1982, which dealt with prayer in the classroom. The plaintiffs contended that the practices mandated by these enactments violated both the Establishment Clause and the Free Exercise Clause of Article I, § 3 of the Constitution of Alabama and the First Amendment to the United States Constitution.

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On July 30, 1982, a motion to intervene was filed by Douglas T. Smith and others alleging that their free exercise of religion would be abridged or terminated by a decision of this Court granting the plaintiffs’ motion for injunctive relief. Intervenors contended that if plaintiffs’ relief was granted, it would violate their rights guaranteed by the First Amendment of the United States Constitution, by the provisions of Title 42, United States Code, §§ 1983 and 1988, and by the Alabama Constitution, the preamble and Articles 1, §§ 1 and 3.

The cause was subsequently bifurcated, separating the Governor and the State School System from the original action.

2

On September 30, 1982, the defendant-in-tervenors, Smith and others, filed a pleading entitled “Request for Alternate Relief” in which defendant-intervenors requested that if the plaintiffs obtained their requested injunction, that the injunction be expanded to include the. religions of secularism, humanism, evolution, materialism, agnosticism, atheism and others. The defendant-intervenors requested that they be permitted to demonstrate that the aforementioned constitute religious activity which the Mobile public schools and the state School Board foster.

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Again, on October 22, 1982, the defendant-intervenors, Smith and others, moved to allow additional names to be added as defendant-intervenors, bringing the total to better than 600.

The matter was heard in November of 1982. It should be noted that the only parties objecting to the intervention were the plaintiffs. The basis of the objection by Jaffree was that plaintiffs were capable of representing a class which would include the defendant-intervenors. However, the defendant-intervenors pointed out graphically the differences that would preclude this. In any event, no class was established.

On January 14, 1983, the.Court entered its opinion.

Jaffree v. Board of School Commissioners of Mobile County, et al.,

554 F.Supp. 1104 (1983). As expressed in that order, the Court held that it had no jurisdiction to hear the complaint of the plaintiffs inasmuch as the Constitution had not been amended to incorporate the first amendment to the states. Therefore, there was no jurisdictional basis for any action by this Court. This being so, the Court did not reach the merits of the case. The Court stated that the entire matter was one cognizable under the state constitution or laws and should be litigated in the state courts, if at all.

In the same opinion the Court noted that in the event the appellate courts disagreed with this conclusion, the Court reserved the right to again look at the record and consider the positions raised by the defendants and the defendant-intervenors.

3

On appeal, the Eleventh Circuit Court of Appeals reviewed the historical background surrounding the Establishment Clause of our Constitution and concluded that, relying upon the law of

stare decisis,

the Supreme Court has held that the fourteenth amendment incorporated the proscriptions of the first amendment to the states. This being so, the district and circuit courts are bound to adhere to these controlling decisions, concluding that if the Supreme Court errs, no other court may correct that error. It further went on to observe that judicial “precedence serves as the foundation of our federal judicial system. Adherence to it results in stability and predictability.” For these and other stated reasons the Eleventh Circuit Court of Appeals reversed and remanded this case to this district court.

Jaffree v. Wallace,

705 F.2d 1526 (11th Cir.1983). On further appeal to the Supreme Court,

Wallace v. Jaffree,

472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985), it was observed by that court that trial of the various issues became unnecessary when the district court held that the establishment clause does not apply to the states. ( 105 S.Ct. at p. 2506 ). However, the Supreme Court went on to affirm the application of the first amendment proscriptions to the actions of a state. In so doing, it too, relied on the doctrine of

stare

decisis.

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Remand

It was and is the opinion of this Court that upon the affirmance by the Supreme Court of the Eleventh Circuit opinion, the mandate of the Eleventh Circuit became the instruction to this Court. The cause was remanded, and upon remand this Court was directed, among other things, to issue and enforce an order enjoining the statutes and activities held by the Court to be unconstitutional.

Further Proceedings

On remand, having reserved jurisdiction for further rulings not inconsistent with opinions already reached, this Court, by order of August 15,1985, also reconsolidat-ed the cases and realigned the defendant-intervenors, Smith and others, as parties plaintiff in light of the relief they had requested. Adjudication of these claims is not inconsistent with the mandate. No one

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privy to the litigation had had the opportunity to challenge the request for relief posited by them.

In the August 15, 1985 order, the Court gave all parties the opportunity to file memoranda in support of any position that they wished to take. It also extended to the original parties plaintiff, Jaffree, et al., the right to withdraw if they so desired. A motion to this effect was filed and granted on September 11, 1985. On September 16, 1985, the original defendant-intervenors, now plaintiffs, in compliance with the Court’s order, filed a comprehensive brief stating their position. On October 2, 1985, the state defendants moved for a scheduling conference.

Upon the scheduling of such a conference, the present defendant-intervenors filed a motion to intervene, which was granted. These new intervenors consisted of several parents and teachers who expressed opposition to the position advanced by the realigned parties plaintiff. Subsequently, the Governor and the Mobile County School Board defendants filed consent judgments confessing the plaintiffs’ claim.

Jurisdiction

The defendant-intervenors did not raise jurisdictional questions when they petitioned for leave to intervene. Indeed, they nor the state raised this issue until the trial, when the pretrial instrument was filed.

It would appear that the main thrust of the contention that this Court lacks jurisdiction to realign the parties and to proceed with resolution of the reserved issues is basically that such action exceeds the mandate. It is the contention of the defendants that a final order had been entered by this Court which ended that litigation; therefore, the mandate did not contemplate further proceedings other than to issue appropriate injunctions.

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In reversing, the appellate courts left the issue of this Court’s retention of jurisdiction undisturbed. In its mandate, the court of appeals specifically stated “We reverse the district court’s dismissal of these ac-tions____” It went on to require on remand that this Court issue and enforce an order enjoining the statutes and activities held by the opinion to be unconstitutional.

Jaffree v. Wallace, 705

F.2d 1526, 1537.

It is and was the opinion of this Court that the parties had expended considerable time, effort, energy and money in presenting issues to this Court concerning their respective rights under the Constitution which have not been addressed. It is and was the opinion of this Court that these parties had the right, and continue to have the right, to have these issues fully determined.

Was this Court’s determination to retain jurisdiction wrong? Was the proper procedure to have bifurcated the case as to the intervenors? Did the remand require a dismissal so that the plaintiffs would have had to refile, stating anew their cause of action against the named defendants, something they surely would have done?

Had the plaintiffs done so, jurisdiction would appropriately have lodged to the same extent that it lodged originally in the case filed by Jaffree. It would be passing strange if such a mechanical requirement could and must be used to deny these plaintiffs their present access to this Court. Our procedures are not this wooden. This Court has jurisdiction..

Complaints

It is revealing to note how the parties plaintiff articulated their complaints for they do so in a variety of ways.

Original Complaints

As defendant-intervenors in

Jaffree,

plaintiffs stated their position as follows:

Aaron Tabor,

intervenor, testified that he was offended by the books that he was

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forced to utilize as a student wherein they appeared to sanction the taking of the Lord’s name in vain, which was contrary to his beliefs. (Orig. Tr. 223).

Byron Tabor,

intervenor, expressed his concern that the schools are teaching the religion of humanism and leaving God out of the equation. It is necessary, he said, that he re-educate his children relative to the questioned doctrine on a day to day basis after they return from school. His children are made fun of because they believe in creation. He believes that God is a part of the true world and the classroom totally excludes any recognition of God and that this is wrong. (Orig. Tr. 225-29).

Karen Phillips,

intervenor, a teacher, found that the textbooks that she was required to use as a teacher were offensive and objectionable to her Christian views. Among other things, she disapproved of the philosophy expressed in textbooks that contends that “people in charge,” or otherwise called “PICS,” are “jerks”. A “PIC” could be a parent. The texts further contend that “people poison” are the words of “PICS” who use them to advance their own selfish and personal gains. Such a philosophy, she states, is contrary to her Christian beliefs which teach the authority of God and of the parent, neither of whom she considers “jerks.” She also found offensive the effort to teach that it is the attitude of the person involved which determines the outcome of everything one does. (Orig. Tr. 666-74).

Lynn Nobles,

intervenor, was another teacher who found the curriculum requirements of the school system to be offensive to her religious beliefs. She found especially offensive the teaching that there are no absolutes, such as right and wrong, and that the teacher is not to advise that there are rights and wrongs. She likewise found it offensive that the curriculum promulgated secular humanism. (Orig. Tr. 677-92).

Linda Evans,

intervenor, also a teacher in the Mobile County system, expressed herself as being offended in her beliefs by the requirement to teach the philosophy of Carl Rogers and Sidney Simon. Though she was not required to attend seminars where these philosophies were advanced, she was encouraged to do so by the school board, and these seminars encouraged the teaching of secular humanism. (Orig. Tr. 699-707).

Subsequent Complaints

In the reconvened trial, additional complaints were expressed as follows:

Robert Whorton

testified that his children were experiencing conflicts between the value systems that the family advanced and that advanced by the school and it’s curriculum. He stated that on more than one occasion he had observed his children in tears over such conflict. In reviewing some of the textbooks, he observed that what was being taught had an effect of turning the student outside the family structure for solutions to problems, wherein he and his wife, as well as his children, felt that this was the family’s role.

In regard to faiths, Mr. Whorton felt that all should be treated equally in the textbooks as well as in the classroom. He advanced the opinion that equal treatment under the law should apply to the religion of humanism as it does to any other religion.

Mr. Whorton expressed his understanding of the religion of humanism as being a nontheistic religion which denies the existence or relevancy of God to any decision making or to anything else that is going on today. As he understands it, secular humanism espouses that there are no moral absolutes and that humans are strictly a result of some biological process and nothing more. He opined that if this is an accepted course of study, then it should be designated as a religion and that the children should be allowed to make their own decisions based on methods of presentation that would give alternatives. (Tr. 375-90).

Sue Webster

testified that her child was in the academically and intellectually gifted child program and as such, followed a different curriculum, but it nevertheless taught that morality is based on man him

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self and ignores the teachings of the Christian ethic. This created a conflict within her child, albeit such conflict brought the family closer together. She feels that what is being taught to her child is the religion of humanism without concurrent instruction in other faiths. (Tr. 410-25).

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Douglas Smith

testified that he is an instructor in the public schools and has been curtailed by his superiors in what he can say and do relative to his beliefs. He is not permitted to teach that there are conflicting views on subjects such as evolution and on pagan origins for some of the practices that we indulge in today, such as Halloween, etc. He found this offensive because it does not allow the students to make their own determinations. He opined that the teaching effort seemed to advance only one point of view, that of humanism. (Tr. 439-47).

How was this concern of the former defendant-intervenors, now plaintiffs, articulated by the pleadings and other expressions of counsel?

In the original petition for leave to intervene it was averred that the intervenors’ free exercise of religion would be abridged or terminated by the decision of this Court or by

stare decisis

if the then plaintiffs’ motion for an injunction against all religious activity in the public schools were granted. It was also averred that inter-venors’ free exercise of religion would be interfered with or terminated if the then plaintiffs were successful in having prayer statutes declared unconstitutional.

Subsequently, by amendment, the plaintiffs stated, alternatively, that should this Court enjoin any activities or teaching from instructional materials designed to encourage a belief in Christian religion, then such injunction should be strictly enforced against the other religions of secularism, humanism, evolution, materialism, agnosticism, atheism, and others. They also contended that their rights of freedom of speech guaranteed by the first amendment, would be interfered with or abridged if this Court granted the original plaintiffs the relief they sought.

In September of 1985, the plaintiffs Smith filed a position paper, in the form of a brief, contending that the curriculum used in the school system unconstitutionally advanced the religion of humanism, unconstitutionally inhibited Christianity, systematically excluded history of the contributions of Christianity to the American way of life, denied to teachers and students free speech and free exercise of their religion and violated the Code of Alabama, § 16-35-3.

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At the commencement of the evidentiary hearing, plaintiffs counsel stated their position in this fashion:

At least half of the original trial dealt with textbooks and, though this was not an issue on appeal, it was an issue squarely presented to the Court. One of the positions the original 624 intervenors, now plaintiffs, took was that humanism is being advanced in the textbooks. It is a religion and therefore should be excluded as have other religious beliefs. In this case the plaintiffs draw a distinction between tenets of faith and facts about religion. Tenets of faith consist of dogma, doctrine and belief and are prohibited from being advanced in the public school classroom. Facts about religion are not. The plaintiffs concede that tenets of faith, dogma and doctrine cannot be advanced in the public school room, but they believe that this restriction should be equally applied to all such. Humanism being such a religion, it should be excluded.

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Another area of contention deals with the inhibition of religion. The plaintiffs contend that when tenets of only one faith are advanced it inhibits other religions. When facts about a religion are regularly censored or excluded from textbooks, that equally inhibits that religion. Inhibition of religion can result by statements contained in textbooks that are contrary to the positions of other religions. The plaintiffs contend that they can demonstrate that the textbooks leave out all meaningful discussion of the part that Christianity and Judaism have played in the history of the United States, and when you do this you relegate these religions to a position of insignificance. On the contrary, the textbooks do teach secular humanism, which is a religion, and this emphasizes its importance, all to the detriment of theistic religions.

The plaintiffs go on to say that they are not asking that their beliefs be imposed upon anyone, just the opposite. Taxpayers, including themselves, should not be forced to support a system that works against their efforts to pass oh their faith to their children.

The plaintiffs further contend that the state textbook adoption process heavily involves the state in the selection of textbooks to be utilized in the public school system in Alabama. The state statute that requires the utilization of these books inhibits free speech positions of the teachers. These books likewise, by content or lack thereof relative to religions, deny to students their right to receive information. Plaintiffs claim this is the same position advanced by the defendant-intervenors relative to the potential denial of information of a secular nature or a humanistic nature contained in these books. The plaintiffs likewise liken this state denial of the history of religion in the textbooks in a meaningful way to the state activity in denying black history and its contributions in these texts.

The plaintiffs also contend that the textbooks employed in the system teach humanism, sometimes referred to as secular humanism, or atheistic humanism, or religious humanism, and that these teachings constitute the teaching of religion within the meaning of the First Amendment to the Constitution and thus should not be advanced as a dogma, tenet or doctrine or belief. (Tr. 27-40).

Class Procedure

Because of the nature and number of parties plaintiff and the problem that was occurring in connection with the discovery processes and the logistics involved in the actual trial of this case, the Court, for the reasons expressed in its opinion, made the determination that the matter should proceed as a class action where the plaintiffs were concerned.

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Answers

The response of the state defendants to the contention of the plaintiffs is that education in the State of Alabama is not monolithic. The real driving force of education in this state is the local boards of education and it is they who are in fundamental control of the educational process. The Textbook Selection Committee reviews approximately 4,000 volumes in the various areas of education, and of these only 45 or so are found to be defective. In regard to the plaintiffs’ claim relative to the free exercise rights of the plaintiffs, the School Board says that the state has adopted no ideological or antagonistic approach to religion of any sort in any of its textbooks. The School Board further contends that there is a clear secular purpose on the part of the state insofar as the curriculum is concerned. And lastly, in balancing the interests of the state against the interests of the plaintiffs it is clear that the state has an abiding interest in the education of its peoples in the least obtrusive manner so as not to effect the plaintiffs’ constitutional rights and all the state can do is to select a curriculum course and allow the teachers to utilize these materials, along with their own efforts, to fulfill these ends of the state.

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In addition, there is nothing about the curriculum that compels the plaintiffs or their children to believe the material contained in the textbooks to the exclusion of their otherwise Christian beliefs. As counsel for the state defendants stated it in their post-trial brief and Findings of Fact on page 40, “the task of balancing the legitimate and compelling interest of the state in educating their children against a religious interest of the plaintiffs is not abridged by the actions of the state as reflected by the materials presented in the textbooks because they do not have to believe it and, in any event, exposure to it is not forbidden by their faith.”

The state also contended that it could not accommodate different religious interests, for they would radically restrict the operating latitude of the state in the development of a sound curriculum. It is argued that the first amendment’s free exercise clause does not prohibit a state from using textbooks merely because those textbooks contain ideas that may be contrary to someone else’s religious reliefs.

The state does admit that a lack of reference to the importance of historical contributions and roles of religion in the development of this country represents poor scholarship, and agrees that it is appropriate that the state superintendent take steps to correct this deficiency. For this reason, these omissions of historical fact in the textbooks cannot be a legitimate basis for the granting of any relief. Any default by the state simply by omitting certain facts from its books cannot be found to create a burden on the free exercise of the plaintiffs’ religion.

The state defendants further contend that the evidence will not show the establishment of any religion by the actions of the state when you apply the

Lemon v. Kurtzman

tests. 403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971). Secondarily, they argue that secular humanism is not a religion and, if in fact it is, it is a religion established by the Constitution itself. (State Board and State Superintendent Proposed Findings of Fact, p. 51 and case cited). (Tr. 41-43).

Intervenors’ Answers

The defendant-intervenors are parents of students attending the Mobile County public school system. It is stated that they joined this case to defend the textbooks against the charges of the plaintiffs that these books unconstitutionally espoused the religion of secular humanism and unconstitutionally inhibited the religion of Christianity because they don’t say enough about it. These defendants contend that the textbooks are doing neither of these things and that secular humanism is not a religion. It is their stated position that secular humanism is nothing more than a convenient label that attaches to opinions and facts that do not comport with religious world views; that where the textbooks do, in fact, contain statements consistent with the beliefs of some secular humanists, they likewise contain statements that are consistent with the beliefs of some Christians. This fact does not mean that these textbooks establish a religion or unconstitutionally inhibit anyone’s free exercise of their religion.

They further contend that the law makes it crystal clear that public school educators can make statements that coincide with tenets of religion without violating the Constitution and that the statements contained in the textbooks that are challenged contain sound educational reasons. There is no constitutional prohibition against poorly written passages in history textbooks, and even if some of the passages are offensive to Christians, they have no appreciable effect on the spiritual life of the children who read them. Also, any isolation or alienation that can be shown cannot be the result of the textbook passages questioned, but are almost inevitably the result of clashes between views of biblical literists and our modern society. In other words, the intervenors say, this is not a religious case, but is a case about clashes of cultures. (Tr. 44-48).

Other Defendants

The other defendants, the Governor of the State of- Alabama and the Mobile Coun

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ty School Board, et al., all entered into stipulations for consent decrees. In these stipulations, the parties agreed that secular humanism is a religion for both establishment and free exercise clause purposes, and that the advancement of this religion in public school textbooks would be a violation of the first amendment. They further agreed that the advancement of humanism does inhibit Christianity in violation of the

Lemon v. Kurtzman

tests, and that the exclusion of historical contributions of religions from the textbooks constitutes an unconstitutional discrimination against religion in violation of the first amendment as it reflects a governmental disapproval of religion. The parties further agreed that the systematic exclusion of this history violates the provisions of the Code of Alabama, Sections 16-35-3, 16-3-15 and 16-35-5, which require that the public schools teach established facts of American history, tradition, and patriotism.

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Intervenors’ Statements

How did the defend'ant-intervenors express themselves concerning these issues in this case?

Corrine Jane Howell

testified she is a resident of Mobile. One of her children attends Murphy High School and the other graduated from Shaw High School. Mrs. Howell has a degree in elementary education and presently teaches the third grade in the Mobile system. She is a member of the Baptist church and has reared her children in the Christian faith. (Tr. 2177-81).

Mrs. Howell states that she does not think it inappropriate for the plaintiffs’ parents to be concerned about the content of the textbooks utilized by théir children and agrees that they have a legitimate right to see that the children are not indoctrinated with one religious view against another. (Tr. 2221). She also stated that she does not disagree with the objectives of the plaintiffs if what they seek is the teaching of historical fact about religion and leaving out the teaching of the tenets of faith. (Tr. 2216). Her involvement is to see to it that tenets of religion are not taught in the public schools. She does not believe that this is occurring in the curriculum, but if it does appear, then she, as a teacher, is in a position to counteract it. (Tr. 2193). As she put it, “You have to understand that what you want them to know, you have to interpret for them.” (Tr. 2183).

Indeed, in order to accomplish this, Mrs. Howell says that on occasion she utilizes other course materials to fill in the gaps that have been omitted by the textbooks, and one of these is a reader that was formerly adopted by the School Board Textbook Committee about 29 years ago. (Tr. 2187, 2190-99). She further testified that, although her teaching effort was conducted in accordance with lesson plans developed by the system, it was up to her to develop her plan and flesh it out. She concluded that she attempts to teach her children how to think critically and in this process, how to evaluate their beliefs against that which might be presented to them by other means and modes. She acknowledged that some parents do not have the educational background that she has or the ability to assist their children when they run into similar problems. (Tr. 2220).

Patricia Chandler Jones

testified she is a resident of Mobile, married, and has no children. She is employed by the Mobile County Public School System at Mary Montgomery and teaches home economics. (Tr. 2226-28). Mrs. Jones is a member of the Cottage Hill Baptist Church and was reared by very devout parents under the Baptist doctrine.

She testified that the students in her class are of an average age of 16 and come from varied backgrounds. It is her policy to allow open and free discussion on all issues in her classes and no one is ostracized for so doing. (Tr. 2233). She says she does not attempt to tell her children what to believe. (Tr. 2233-37). She feels that since hers is an elective course for students, she has more freedom to develop the lessons that she gives. (Tr. 2237).

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Mrs. Jones stated that critical thinking was relevant to her course of study and if •she was unable to teach critical thinking, then she would fail in her job as a teacher. (Tr. 2240). She does not require that students accept everything they read in the book. When she does test, she has to consider the answer differently depending on whether the question asks for an objective reply or a subjective reply. If the question is one calling for a subjective reply, then she has to be willing to evaluate the student’s response in the same manner that the question was asked, for there can be no right or wrong answer to that type question. (Tr. 2241). In this area, she did acknowledge that her values would ultimately be transmitted to the students in the classroom. (Tr. 2242-43). This, she also acknowledged, would influence the students in determining distinctions between right and wrong, whether the textbooks addressed the problem or not. (Tr. 2248). It is her purpose, she says, to build upon family influences, but where there is no strong family background, her course becomes more critical because it is the only place the child can get strengthening and nurturing in these areas. (Tr. 2251-52).

She acknowledged that if you simply use the textbook when it is discussing the issues of alcohol, the conclusion would be wrong because it implies it is up to the individual to make his own decisions in this respect, and the same would apply to the use of drugs. (Tr. 2256). As to these areas, she brings her background to the task and feels no restriction in so doing. She summarized by saying that in her teaching efforts she relies heavily upon her religious faith and applies it to her efforts in the classroom. When the textbook language conflicts with her points of view, then she uses her own language. (Tr. 2261).

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Mrs. Jones also acknowledged that her training as an educator was influenced by the teachings of John Dewey, Havinghurst, Erikson and Maslow.

No other defendant-intervenor testified.

State Defendants’ Statements .

The position of the remaining state defendants, namely, the State School Board, its members, and the State Superintendent, is stated in the evidence given by several witnesses, in part, as follows:

William Arthur Huestes

stated that the textbooks utilized in the Alabama schools are selected, pursuant to law, (Code of Ala. 1975, Section 16-36-1) by a textbook selection committee consisting of twenty-three members, nine of whom have no employment in education. The remaining fourteen of these members are made up of classroom teachers from the elementary and secondary schools, teachers or persons actively engage in the supervisory or administrative capacity, persons employed in institutions of higher learning, and members of local or city boards of education. Thus, the testimony is that the majority of the members of this committee are persons connected with the educational process. (Tr. 1644-70).

The books reviewed by this selection committee are those submitted by publishers to the State of Alabama pursuant to an invitation issued by the State of Alabama containing the recommendation of the State Superintendent of Education relative to the courses of study to be employed in the schools. (Tr. 1472-75). At 23 locations within the state the public is given the opportunity to review these textbooks and make any comment that they wish to the committee. (Tr. 1474-85). The final decision as to which textbooks will be employed is made by State Board of Education. (Tr. 1480). By and large, the local school boards select from this prepared list. (Tr. 1482). Indeed, all of the books in issue in this litigation are on that approved list.

John Tyson

stated that the presiding officer of the State Board of Education in Alabama is the Governor, but that he, as

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Vice-President of the State Board, serves as the presiding officer in the absence of the Governor. (Tr. 921). Mr. Tyson testified that he had attended all of the meetings of the State School Board since he had been elected and is not unaware of the problem with the adopted texts where they leave out reference to the contribution of the various religions to the development of the American society. He felt these facts were necessary to the textbooks if they were to teach fairly. (Tr. 925). In fact, Mr. Tyson said the State Board had adopted a resolution to that effect in June of 1986. (Tr. 926-28). In the past, it had been left completely to the considered judgment of the committee and the professionals.

Mr. Tyson went on to state that, in the main, the State Board does have the ultimate responsibility for the adoption of textbooks, and if state monies are employed, then these books will be utilized. However, local school boards can, when utilizing their own monies, go outside for other texts. (Tr. 930).

On the question of whether humanism is included in the textbooks or has been studied by the board to determine whether it exists or should be excluded, Mr. Tyson says that this has not been undertaken because he does not understand what is meant by secular humanism and therefore does not know what to look for or attempt to exclude. He did express himself, personally, that values are not something that he thinks should be taught in the schools, but should be taught at home and in the churches. “What you go to the public schools for is to be educated to learn how to read and to write.” (Tr. 931).

Wayne Teague

is the State Superintendent of Education. The state school board consists of eight members that are elected from separate districts. This board has general control of the public schools in that the board administers the state school systems in accordance with the laws enacted by the legislature. (Tr. 1613). The State Department of Education is under the control of the State Superintendent and not under the direction of the State Board, but the State Superintendent is appointed by the State Board of Education.

The Superintendent testified that there is a very loose control by the state over the local boards. He believes that these boards should be as autonomous as possible. (Tr. 1618-20). He further testified that he has the authority to review actions of local boards and that actions taken by him are binding until some court overturns them. (Tr. 1622).

Dr. Teague stated that the state board does control the teacher training institutions and programs in the State of Alabama. (Tr. 1637). This is done by setting the standards that will be applicable. A part of this is a program that deals with teaching methodologies because a teacher needs to know the various ways to teach. In this connection, they are required to take courses in human growth and development.

A number of witnesses presented by the state defendants covered subjects dealing with the educational process generally and specifically as it applies in Alabama and to the facts of this case.

An example is the testimony of

Glenelle Halpin,

an alumni professor at Auburn University.

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Dr. Halpin has a degree in psychology and is a specialist in educational psychology. Educational psychology purports to apply psychological principles to the educational process. (Tr. 1899).

According to Dr. Halpin, various theories of learning have impacted upon the educational systems in this country. These theories or approaches may be categorized into three major areas: (1) the area of behaviorism, (2) the area of cognitive théo-ry, and (3) the area of humanism. Dr. Halpin testified at great length about the history and substance of each of these theories of learning.

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The first theorist was John Watson. He is considered to be the father of behaviorism. (Tr. 1902). The next major theorist was Edward Thorndike, and basically his theory was that if the learner behaves in a situation and that behavior is rewarded, then he is likely to repeat it. (Tr. 1903). The next was B.F. Skinner. His association with behavioristic positions is probably the greatest. (Tr. 1903). Skinner’s approach, she says, was akin to Thorndike’s, but his contribution was that of shaping. This is a theory of gradually reinforcing positions closer and closer to the behavior desired. (Tr. 1903). The next was Albert Bandura, and his theory was one based on modeling or the imitation of a model. If the learner imitates a model and the learner’s behavior is not reinforced, then the learner is not likely to imitate the model. This teaches that a teacher can shape the learner’s behavior through such reinforcement.

As applied to textbooks, Dr. Halpin suggests that when a child is sitting at a desk with a textbook, you have a learning situation, and if there is a statement in the textbooks that is to be learned, that statement or the situation created by the learning medium must be reinforced. (Tr. 1906-07). She states that the textbook in this instance cannot itself provide that reinforcement. If a child reads in a textbook that you should go to your peers for assistance in making decisions about drugs or other matters, and the child, in fact, does that, then that would constitute' the reinforcement under this theory. (Tr. 1910-11).

As to the cognitive learning approach, this came about in the early 1900’s when psychologists made the determination that there was more to learning than just simply reinforcement of overt behavior. (Tr. 1913). Among the cognitive people were Jerome Bruner and David Ausubel. They felt that one learned through discovery. (Tr. 1916).

The third area is the humanistic psychology approach which evolved as a reaction against behaviorism. This approach focuses on the individual, the individual and the group, and the human and humankind and its interrelations. According to Dr. Halpin, the first major theorist of this view was Maslow. His approach to learning is the humanistic view. (Tr. 1916). Maslow’s theory establishes a hierarchy of basic psychological needs by which we are motivated. (Tr. 1919).

When Maslow uses the term hierarchial, Dr. Halpin interprets this to mean that if needs are not fulfilled, a person will not move beyond the level of those needs. Thus if a man is starving he would tend to get food. Then, if he doesn’t fulfill that need, his efforts will remain at the very basic level. (Tr. 1920). The next level according to Maslow, she says, is love and belongingness. We have a need to be accepted and we need to satisfy this need. (Tr. 1920-21). The next is esteepi. As to this a teacher needs to make the child feel worthwhile. The child needs to excel and be successful in the classroom. At the top of the hierarchy Maslow puts self-actualization. He feels this is the most critical of needs. Self-actualization translates into being all one can be.

Carl Rogers is the next major proponent of humanistic psychology. He felt that teachers should facilitate learning, (Tr. 1926), through three critical attitudes of congruence, empathy and unconditional positive regard. (Tr. 1926). Congruence is realness, a genuineness, the absence of a facade. A teacher must present himself as a person with conviction. Empathy means the teacher needs to be able to put herself into the shoes of the learner. (Tr. 1927). Positive regard is appreciation by the teacher that the child is a human of worth. Dr. Halpin states that Rogers is a well-known therapist, but also an educator. The attitudes that Rogers teaches, which she outlined, were attitudes that he found to be effective in his therapy. (Tr. 1928).

The next major theorist of humanistic psychology is Arthur Combs. It is his idea that in order for behavior to be effective, the learning has to be personal and meaningful. Dr. Halpin concludes that what this means is that a child will learn from a

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textbook those materials that are congruent with his or her belief system.

Dr. Halpin then moves on to a discussion of developmental psychology and refers to the works of Eric Erikson and his notion of striving for identification. This is a major crisis during adolescence. A child strives from birth to establish the “real me.” During the first year of life there is the development of trust. During the next two years or so, there is the struggle for autonomy. Then comes the age of doing, which carries him through the elementary years. These stages are brought forth into adolescence where identification becomes important. In this period there may be a repudiation by the child, where the child rejects those things which he has brought to that point. During this stage, she says, the child should be given leeway, and adults who understand that should be the ones to surround the child and guide him. (Tr. 1938-39).

Her next discussion involved the theories of Kohlberg. Dr. Halpin says Kohlberg is among the foremost theorists in the area of moral development. This theory is a cognitive development theory as it involves the highest level of abstract principles such as justice and the like. Little children aren’t at this level, but in order to help them get there, he suggests some activities such as a hypothetical moral dilemma, using such examples as the man whose wife is dying and the druggist won’t give him the drugs needed, so the question is should he steal them. Kohlberg also feels that there should be a democratic approach to problem solving in the schools. As to this, Dr. Halpin says, he has been criticized. Kohl-berg does not believe that teachers should indoctrinate, but should advocate. (Tr. 1946-47).

Dr. Halpin next discusses values clarification as developed by Raths, Harmin and Simon. She says this is a misunderstood process. As to this process, the first procedure is choosing. This should be done from among alternatives, and a concomitant to this would be considering the consequences. The next step is prizing and this involves being happy with the choice made. (Tr. 1950-51).

Dr. Halpin says as to the books that she reviewed, there was a consistency between the passages and humanistic psychology. (Tr. 1953). A critical thing in these books is the interpersonal interaction and these books seem appropriate in their content for this purpose. (Tr. 1954).

She next discussed the theory of cognitive dissonance as advanced by Festinger. This involves the results from a voluntary commitment to a choice made from among alternatives. The example given is where a girl has to choose between two boys for marriage purposes. When she chooses one, the other is ruled out and this would bring about a dissonance. (Tr. 1955). In regard to this, the choice must be between two equals. Once a choice of this nature is made, then the chooser begins to support that choice. (Tr. 1955). As this relates to the textbooks and what the children learn at home, Dr. Halpin concludes that there is most likely no cognitive dissonance under these circumstances. The reason for this is that what would be contained in the books may well be incongruent with the basic beliefs learned at home. Thus, what is presented in the books, if it is not really important to the student, will not affect his own beliefs. (Tr. 1957). Dr. Halpin does admit, however, that textbooks causing this cognitive dissonance might harm a child, though she feels that this would be the exception rather than the rule. (Tr. 1958).

She states that a purpose of school, though it may appear to be a hidden purpose, is to develop a citizen for a just world, to develop a humane being. This is part of the concern and of the ideas of humanistic psychology. The teacher is the primary agent in carrying this out. (Tr. 1959). The textbook is just one of the many tools.

Dr. Halpin then describes what she considers to be the difference between the humanistic psychological approach and the hedonistic approach. She says hedonism is concern about the self only; if it feels good, do it. This is not her understanding of the humanistic psychology. She be-

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Heves humanistic psychology is one of valuing, of caring, of being concerned, not only about the individual, but about humanity in general. It’s goal is the realization of the human potential, not only of an individual, but human kind, of everybody, and of everybody in relation to everybody else. (Tr. 1960-61). She says that humanistic psychology does not deny the existence of the spiritual nature of men. Nor does it deny the existence of God. She does not equate humanistic psychology with the ideas expressed in the

Humanist Manifestos.

She does admit that there are some areas where there is equality in principle expressed, but where it differs is in the denial of the existence of a prayer answering God. (Tr. 1964).

When asked specifically whether the home economics books that she looked at mentioned the existence of a hereafter or a prayer answering God, she admitted that she could find no such reference. (Tr. 1965). She also said that she has never done an exact study on the relationship of learning to textbooks, or how students learn from textbooks. (Tr. 1967). She also said that the most significant tool used in the classroom is probably the textbook. (Tr. 1970).

In regard to the area of whether the teacher should build upon or be sensitive to what the parents are trying to teach the child at home, Dr. Halpin says that she feels to some extent they should, but not being able to survey the parents to ascertain this, it would be relatively impossible to cover all bases. (Tr. 1972). In instructing her students, who are potential teachers, she does not advise them directly that they should be sensitive to the values and morals of the parents of the children in the class. (Tr. 1978). This might come up indirectly in the course of instruction out of presentations on values clarification and the like. (Tr. 1973). Dr. Halpin says that the school does not have the right to teach a value system that is different from the parent, but the content of the curriculum in the school is not necessarily based on a survey of the value systems of the parents, so when the teacher does instruct she may well match or mismatch, deliberately, the information about values that have been presented to that child. (Tr. 1975). What is taught in the school concerning values and morals are usually based on many criteria.

In the teaching of humanistic education, the need for a Christian God is not part of what is generally taught. (Tr. 1993). Nor is there any reference to a supernatural source by Rogers or Maslow. (Tr. 1993). God is not a direct issue in humanistic psychology and is not referred to as a need in proper psychological development. (Tr. 1994).

Dr. Halpin acknowledges that she has not read many criticisms of the techniques that she has defined, (Tr. 2028) but she does say that she, in her courses, indicates to her students that there comes a point where a teacher has to indicate to her students that certain areas are not open to choice; such as those areas involving human life and maybe vulgarity and obscenity and things of that nature. (Tr. 2029).

On cross-examination Dr. Halpin also discussed various books and the content of certain teachings which are the subject of the controversy in this case. (Tr. 2040-2046). Her chief criticism of the plaintiffs’ method in examining these books is that their experts took matters out of context. She contends that if you read them in context, they can be rationally explained as not denying the existence of the Christian ethic.

13

The state defendants then offered

Dr. Charles Rudder,

currently employed with Auburn University at Montgomery teaching a course in history and philosophy of education.

14

Dr. Rudder states that it is not possible for a teacher to teach without

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teaching values. (Tr. 2087). In this regard it is sometimes necessary to teach origin of values, and sometimes it is not. (Tr. 2090). Keeping in mind that a distinction must be drawn between values and value judgments, Dr. Rudder states that in teaching his teachers, he does teach them the place of values in the curriculum though it is done without specificity. (Tr. 2092). He goes on to say that from a philosophical point of view, one can teach the process of one adopting a value without necessarily involving one’s self in a discussion of its origin. (Tr. 2093). The fact that you do not discuss the origin does not deny its origin. When pressed on this point, Dr. Rudder says that in teaching the value of not lying, for instance, rather than getting into where that value originated, you simply state that it is a general agreement standing in our cultural tradition that it is right to tell the truth and wrong not to. (Tr. 2094). In other words, if you do not teach a child that a value is not absolute, then you are not denying that it in fact may be absolute. (Tr. 2094). If something is thought to be absolute, then it is said that that thing is without beginning and end. In other words, changeless. So if you teach this, you are in fact teaching the nature of the existence of things. (Tr. 2095).

Dr. Rudder says there are some philosophical positions that recognize the realm of reality which has no beginning and no end. But in education, you are dealing with fallible human beings. So that in considering whether the principles or laws or truths exist in an absolute realm or not, you run into the possibility of misapprehending or misunderstanding them because of the fallibility of the human. Therefore, you do not teach absolutes. (Tr. 2096-97).

Dr. Rudder acknowledges that John Dewey, an American philosopher, influenced educators and philosophers of education until at least 1950. It was Dewey’s view that schools are vehicles through which society can be changed, and it was his effort to influence the direction of that change. (Tr. 2099). Dewey desired that society become democratic in the sense that society would determine what the emergent outcome of cooperative activity would be. (Tr. 2100). Dr. Rudder says he does not agree with this position of Dewey. He further states that he believes that Dewey’s influence today is very slight. (Tr. 2101). His reason for this is that educational reformers who have tried to advance theoretical constructs of how education ought to be have generally failed in that effort. As an example, the concept of the new math failed, he says, because teachers wouldn’t do it, parents wouldn’t support it, and there was suspicion that it wasn’t a sound theory in any event. (Tr. 2103). Dr. Rudder says the greatest influence on education today is social pressure. (Tr. 2103).

Dr. Rudder also says that there are a multitude of ideological influences competing for attention and loyalty in public education, and this is reflected apparently in the textbooks, though he has not specifically read them. He says if you accept what Dr. Baer has stated about the textbooks, then you would have to agree with him that they are internally contradictory and incoherent. (Tr. 2105-06).

Dr. Rudder then goes on to try to identify the teaching effort as it has evolved today. He defines teaching as a structured activity in which you say a specific activity has a specific anticipatable outcome. That is, the teacher teaches and the student learns. In this context, he finds it difficult to see how leaving something out of a book fits that definition of teaching. If, on the other hand, teaching is that which produces a change in a person, then likely silence or omission would have some kind of teaching — learning consequence. (Tr. 2108). To really make that determination, one would have to make specific studies of the subject to see what the impact of omission would be. (Tr. 2109).

On the issue of making choices, Dr. Rudder theorizes that if the student is given reasons in the literature why one choice would be better than the other, and these choices do not exclude reasons that might have been given that child at home or at church, then there is no conflict that he sees between the efforts. On the other

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hand, if the school teaching encourages the student to ignore that outside influence, then that’s another matter. (Tr. 2115). Dr. Rudder then discusses two understandings of what is religion. One is the functional and the other is the substantive approach. The functional view, as he understands it, is whatever we say it is. The substantive view is related to the sacred. It is his opinion that so long as you do not extract a denial of the supernatural, then the supernatural and the natural can co-exist without necessary conflict between them. The educational process is to acquaint the learner with the natural. (Tr. 2121-22).

The state defendants also presented

Barbara J. McMillan

of Montgomery, Alabama, who is the Executive Secretary of the State Course of Study Committee and who testified as to the procedures followed in coming up with courses of study. Mrs. McMillan testified that, pursuant to state law, twenty-one persons comprise the committee and all of them are from the educational field. (Tr. 2136).

The Court has spent this time outlining the method of textbook selection, the composition of the committees dealing with selection of instructional material, and the process used to train in the teaching institutions in Alabama, to reflect the philosophic base of those involved in the selection process of the school texts. The Court finds this plays a very real part in the inquiry dictated by this case. More as to this.

According to

Dr. Russell Kirk,

15

John Dewey’s school of thought may now be adjudged as dominant in educational circles. Dewey was a humanist and was of the opinion that this humanism which he espoused was the religion of the future. (Tr. 1354). Dewey felt that religions existing at that time were outmoded, and that in the future the individual would be classified as little and the society as much. He believed that his religion was primarily concerned with the social order rather than the ordering of the soul. (Tr. 1355).

Dewey contended one should not read books written prior to 1900 because wisdom was new and not old. One should look to the future rather than to the past and hope to work toward an egalitarian society, marked by equality of condition and talent, a universally peaceful society which would guide itself not by old beliefs, but by new ethics derived from modern scientific doctrine in both the biological and physical sciences. He did not feel that society would have to cease to be religious, for he felt that there was a need for a religion in the sense of a set of central moral beliefs of a permanent character, but this religion would be quite different from any religion of the past. These would have to be cast off. (Tr. 1375). Kirk says Dewey also expressed himself that “We must be militant in our new religion.” (Tr. 1377).

It was Dewey and his colleagues who issued the first

Humanist Manifesto.

(Tr. 1379-80). Dr. Kirk explained that Dewey’s ideas were called instrumentalism and that it looked upon education primarily as an instrument to prepare the way for an egalitarian society in which people will cooperate and in which there will be little challenge or problems. Thus, education would become a social function as contrasted with other ideas that had prevailed. (Tr. 1388). Present day progressive education is an outgrowth of his ideas and is sometimes carried beyond those ideas by its followers. In short, it is an elaborate system of pedagogy, which established a form of learning through personal experience and by classroom activities that simulate adult life. Though this was established in the 20’s and 30’s, it is still often called today the American educationalist empire. (Tr. 1389).

An illustration is the social science disciplines which came into being during the 20’s and were later enlarged upon and given considerable boost by the former president of Harvard, James Bryant Conant, during the 50’s. Social science is viewed as a kind of “omnium-gatherum” in which improved behavior in society is brought about by imposing upon society a new moral pat

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tern. This social science supplanted the former teachings of history and geography. What history and geography is now taught is under this general umbrella of social science. (Tr. 1389-90).

Dr. Richard A. Baer, Jr.,

professor in the Department of Natural Resources at Cornell University in Ithica, New York, also testified concerning the background of some of the psychologists and philosophers referred to by Dr. Halpin.

16

Dr. Baer says that a review of the textbooks leads to the conclusion that they contain sources that clearly are linked with the philosophy of hedonism. (Tr. 822). That is, that all motivation is pleasure determined. It is closely related to the philosophy of existentialism that argues there is no God and we are totally dependent upon ourselves to make our value judgments. He notes that this is the philosophy of Jean Paul Sartre and is strongly influenced by what is sometimes called humanistic psychology advanced by Maslow and Rogers. This psychology argues there is no God and we must make our own choices, and if we let others influence us in this, then that is an example of bad faith. The result is a convergence of thinking about the nature of values on the metaethical level. This is basically antithetical to traditional Christian thinking, which is that values can be objectively grounded.

Metaethical value judgments are matters of preference and taste in personal opinions and they cannot be known to be right or wrong or true or false. They have to do with one’s own desires and fulfillments and self-satisfaction. Knowing this philosophy is absolutely essential to an understanding of what is going on in the specific passages in the various books questioned. (Tr. 825). Dr. Baer testified there are many sections in the book that are consistent with Rogeri-an psychology and Maslow humanistic psychology, thus advancing the teachings of secular humanism. (Tr. 868). He also indicates that Sidney Simon and Merrill Har-min, two of the names mentioned by Dr. Halpin, follow the same general philosophy of Maslow and Rogers. (Tr. 916).

Dr. William R. Coulson,

a licensed psychologist in the State of California and Professor of Psychology and Education at the United States International University, also testified in regard to these matters.

17

Dr. Coulson received his Ph.D in philosophy at Notre Dame, but also pursued a degree in counseling psychology at the University of California at Berkeley and studied clinical psychology at the University of Wisconsin under Dr. Carl Rogers. (Tr. 467-8). After completing his educational efforts he went to La Jolla, California to the Western Behavioral Sciences Institute. This is a non-profit organization which was then doing research in humanistic psychology and was under the direction of Dr. Rogers. As resident fellow, he served as Dr. Rogers’ research associate. In this capacity he got to know, and developed a very strong relationship with, Dr. Rogers. (Tr. 469-70).

Dr. Coulson says that humanistic psychology is the most accessible of the major psychologies and has been seized upon by the writers of many textbooks and especially those used in high schools. It is the preferred psychological modality revealed to high school students of psychology, as well as other subjects. In terms of influence, Dr. Coulson says that Carl Rogers is by far the most influential in this field, surpassing Sigmund Freud and B.F. Skinner. (Tr. 369). Dr. Coulson testified that others who had influence in humanistic education were Louis Raths, the father of values clarification, and his associates, Howard Kirschenbaum, Merrill Harmin and Sidney Simon. (Tr. 473).

Without, at this juncture, cataloguing all that Dr. Coulson had to say relative to the textbooks in question and his statements relative to their advancing the theory of humanistic psychology, he does summarize that the philosophy espoused is “that only you can judge your values, you are the designer of your life, you are the most important person in your life,” and this

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serves to deny all absolute values except that one absolute value. This, essentially, is a claim that one takes on an absolute kind of authority to one’s self. (Tr. 2558).

All of this comes from the philosophy advanced by Dewey. In his paper, “Religion in our Schools,” Dewey created a new religion having four basic elements. First is that right and wrong reside only in consequences. Secondly, there is no cosmic guarantee of meaning. “As Dr. Kurtz stated in the

Humanist Manifesto II:

‘No god will save us. We must save ourselves ____’ Thirdly: Children, no less than the rest of us, must be liberated from their subjection to the past____(our parents) ... And fourthly, because of all of these, the preferred method of getting through life in a wholesome way, is to engage in what is called value processing____” (Tr. 2561).

Dewey’s philosophy seeks to exclude older moralities which developed through the centuries in exchange for making each individual supreme so that the educational experiment can continue in a properly scientific way. This has brought on values clarification. Louis Raths acknowledges that his efforts in this area are quite dependent upon the works of John Dewey. As Raths put it “We have been extraordinarily blessed in this century with a great philosopher. His name is John Dewey.” (Tr. 2560-63).

Dewey’s influence was also felt by Abraham Maslow, Carl Rogers, and Lawrence Kohlberg. (Tr. 2569-70).

Responding to Dr. Rudder’s testimony and that of Dr. Kurtz, to the effect that Dewey has relatively no influence today, Dr. Coulson says they feel that way because they, in fact, see through the eyes of Dewey though they do not know it. He analogizes by referring to his glasses. As long as you have them on, you are not aware that you do, and thus Dewey is the spectacles through which American educators have been trained to see the world. He determines that it is not surprising that they no longer see Dewey because they see with Dewey. (Tr. 2572). He also noted that when the other educators were interrogated about who the greatest philosopher affecting American education is, they all mentioned John Dewey.

Dr. Coulson testified that not only is it the American who has observed the effect of Dewey on the educational process, but also his students at the International School have commented that one of the concerns they have is that somehow coming to America would serve to convert them to a kind of a new form of American imperialism, which they call moral relativism. They expressed themselves as troubled by the thought that they will go back, having become typical Dewey-eyed Americans. (Tr. 2572).

Also, he commented on reflections by R.S. Peters, a noted British philosopher of education. Peters observed that the American system is that we do not teach religion in public schools, yet we teach Dewey’s philosophy, and that is a religion. (Tr. 2570-71).

Dr. Coulson summarizes by saying that he agrees with Dr. Russell Kirk that there are two sources of Deweyism today. One is the publishing industry and the other is the college of education. As to the colleges of education, this is reflected by the high regard that Dr. Halpin and others have for Maslow, Rogers, et al. These theorists are direct in the line of descent from John Dewey, particularly in the rejection of the need for the supernatural. (Tr. 2582). Children who have been raised and educated in the schools over the last twenty years or so are in special jeopardy because this relativism which has been espoused has become the church of the public school. (Tr. 2583). It is a philosophy that is hostile to established religion because in the establishment of this new church, a very comprehensive system had to be erected that left out the cornerstone of most previous ethical systems: the absolute. (Tr. 2566).

The foregoing is a truncated version of the testimony dealing with the impact of modern teaching philosophy and ideas on our present educational efforts. In abbreviating in this fashion, it is not the Court’s intention to denigrate or ignore the testimony given by others on these points. In

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deed, this Court is overwhelmed by the volume of such testimony.

That these philosophies have been advanced with zeal is indicated by the testimony of Dr. Halpin and other teachers who are the products of the educational institutions of the modern day, and by the testimony of Robert F. Baker, formerly an educational publisher of school books, the most recent employment being with Ginn

&

Company. (Tr. 1855 et seq.).

As to the publishers,

Dr. Kirk

addressed their problem in this way: there prevails with the textbooks published today an attitude which is uneasy with traditional religion and its doctrines or creeds, but which readily accepts the views which might be labeled as those of secular humanism. (Tr. 1360). He concludes that this results not so much out of conviction on the part of these publishers as it does out of expediency, and he concludes that a good many textbook publishers, mostly being centered in New York or Boston, are affected because of the milieu from which they come, and because of their schooling. These things do not create friendly attitudes towards traditional religion. In other words, the publishers are more concerned with their pocket book than anything else. (Tr. 1360).

Dr. Kirk also asserted that these publishers are constantly tormented by, and yield easily to, well organized pressure groups. He concluded that these publishers feel that if they were to insert very much about Christianity into the textbooks they would be strongly criticized by school administrators, who in turn are uneasy about possible actions at law against them for being in violation of possible court orders concerning the first amendment, and, therefore, there is a tendency to say as little as possible about established religions. (Tr. 1361). He also noted that many on the staff of these publishers, the editors and the like, too, were brought up under the schooling and teaching of the Dewey philosophy, being strongly influenced by the instrumentalist school of education. (Tr. 1374).

18

Dr. Kirk testified concerning the quality of instruction available today. He says that his opinion is based on a 25 year study of the teachers colleges. He has discovered in university after university that it is the students entering these schools of education that have the lowest IQ ratings and the lowest high school grades of any group on the college or university campus. Yet when these students graduate, despite having received A’s in educational courses, they still rated in the lowest IQ ranks of any other group graduating from the college. This phenomenon, he says, is not based upon unions and salaries of teachers, but is based in large measure upon the fact that the courses taught are so dull they repel more able students. (Tr. 1392). He concluded that this phenomenon is due to the dulling and unimaginative influence of the philosophies fathered by Dewey. In short, he says these lack push and drive and vigor and what is called moral imagination. (Tr. 1392).

Quality of Education

With the exception of the state experts who testified, all other experts who addressed the question of the end result of the present effort of the teaching process utilized in Alabama and elsewhere, stated that the results were abominable.

Dr. De-los McKown,

testified that in his position as a professor at Auburn, he is horrified by what he is getting out of the schools and shares the very great concern about the mess in the primary and secondary schools. He classified it as a scandal, that the children come out with their brain so scrambled that nobody could teach them anything. (Orig. Tr. 391).

Dr. Paul

Kurtz,

19

defendant-intervenors’ expert, was also asked about various passages in the books that were the subject of plaintiffs’ criticism and which dealt with various teaching philosophies. He stated that he concurred with plaintiffs in some

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respects in that if the curriculum in these aspects were followed by the students, it would lead to an absolute breakdown in morality in society. He stated that such teachings deny to the educational process what is known as critical thinking. (Tr. 1731-40).

Dr. Richard Baer’s

expression about the books was that they are dismal, (Tr. 862) and very shoddy. (Tr. 886). As Dr. Baer puts it, “in terms of present curricular decisions most public schools ... today are no longer local schools functioning in loco par-entis ... They are really functioning in curricular materials as a part of government.” (Tr. 904). Dr. Baer concludes that instruction needs to be structured so that it becomes truly a place where one learns, but in learning, has equal access to all learning, agreeing with Dr. Kurtz that what needs to be taught is critical thinking. (Tr. 914).

Dr. Coulson

says that the books that have been produced are not only bad psychology, but constitute an unfounded faith claim. They are ideology. (Tr. 574).

Dr. Robert

Coles,

20

defendant-inter-venors’ expert, whose deposition was introduced by plaintiffs, testified that he felt for the parents in their complaints and struggles because he shared their view of the books as containing a quantity of “social and cultural rot.” (Plaintiffs’ Exhibit 92, depo. 176-66).

Dr. Timothy Smith

stated that high school students are confused by the history curriculum. (Tr. 98).

Other witnesses testified on these points, and without stating their criticism as graphically as the above did, nevertheless expressed themselves in the totality of their testimony as being critical of the content and the method of instruction employed.

21

These witnesses referred at some length to the fact that the textbooks now being used in Alabama, and indeed elsewhere, make no meaningful reference to theistie religions, or other ethical premises which they espouse, and that this trend is becoming more and more prevalent with the passage of time. Some say that this is based on economic desires of the publishers of textbooks and some say that it is the result of the generalized acceptance of the theories initiated by John Dewey which have filtered down through the teaching mechanism to the state institutions that are involved with the textbook selection process. The evidence reflects that this process commenced in the 20’s and has now so permeated the industry that the only time a student can expect the opportunity to critically examine the secular humanist philosophy is when the teacher provides the critical information for such study based on his or her theistie beliefs.

Thus, it becomes important to understand what the evidence demonstrates is meant by the term secular humanism.

Secular Humanism

As one might surmise, a great deal has been said and written about secular humanism. The evidence preponderates that the terms humanism, humanities, humanitarianism, and secular humanism mean different things to different people depending upon who is using the terms, what is being considered, and upon the age in which the term was utilized.

22

As stated by Giustiniani, “ ‘Humanism’ is one of those terms the French call

faux amis.

Although it occurs in all modern languages in very similar forms, its meaning changes not only from continental European languages to English, as in most English borrowings from Latin or French, but also from Italian and German to French. Even in the same language the meaning of ‘humanism’ can fluctuate. It can hardly be otherwise____”

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The general public obviously does not concern itself with any classical or philosophical definition of these terms, thus the problem of understanding their relevance to this litigation is greatly multiplied. An example: Dr. Kirk feels that the term secular humanism is a misnomer and thinks the term humanitarianism is better.

Dr. Kirk states that the term “secular humanism” is a term of the twentieth century and is now widely used in scholarly circles. (Tr. 1352). It came into being after the formation of the American Humanist Association in 1933. (Tr. 1353). During the late 20’s and early 30’s, a curious battle for the use of the word humanism arose between those who called themselves ethical humanists, and led by Irving Babbitt and Paul Elmer More, and a group who called themselves religious humanists, led by John Dewey and his disciples. The ethical humanists emphasized classical disciplines and advanced what might be referred to as a study of the humanities. Babbitt’s theory faded in significance as the Dewey philosophy gained ascendance. (Tr. 1353). The term secular humanism arose, states Dr. Kirk, apparently to distinguish the humanism of the school of Dewey from the humanism of the school of Babbitt and More.

Dr. Kirk says Giustiniani examined at some length the change in the term from classical times down to the present, and discussed the development of the different uses of the word and how it has come to be used in America today. Giustiniani concluded that the American Humanist Association is the church of secular humanism in this country today and recognizes it as a kind of religion. (Tr. 1352-53).

Dr. Kirk defines secular humanism as “... a creed or world view which holds that we have no reason to believe in a creator, that the world is self existing, that there is no transcendent power at work in the world, that we should not turn to traditional religion for wisdom; rather that we should develop a new ethics and a new method of moral order founded upon the teachings of modern naturalism and physical science.” (Tr. 1372). Secular humanism is to be distinguished from the term humanism, he says, for the latter term properly employed in its historical sense, “means primarily regard for a body of humane literature, belief derived from historical experience and from a body of literary criticism, and especially from the classical, that is, the ancient Greek and Roman experience.” (Tr. 1374).

The definition of humanism or the humanities, as an expression in the classical sense, is still utilized today in various colleges and universities and has been employed by the National Endowment for the Humanities as well as the United States Department of Education. (Tr. 1383). This is not the same view of the term taken by secular humanists or humanitarians, for what they have in mind is largely social objectives rather than objectives which are primarily personal, literary and philosophical. (Tr. 1384). He explains this dichotomy and how it came to be in this fashion:

“... there had been going on ever since the first decade of the twentieth century and down to 1933, when the first

Humanist Manifesto

was issued, a movement about which there occurred a great deal of discussion in America.

It was generally called the new humanism or American humanism. There were many eminent writers whom the most well known were Irving Babbitt at Harvard University and Paul Elmer More, the literary editor of

The Nation

magazine.

These two men and their followers were trying to reinvigorate classical studies in America. In short, to bring back real attention to great literature, particularly Greek and Roman literature, together with the whole tradition of great literature down to our times. As contrasted with utiliterian or practical or Bentham-ite attitudes towards learning, they were literarily conservative and stood for the great tradition of learning and education. As they preached their doctrines, they were attacked by various people from various points of view. This was a fa

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mous debate that extended over thirty years.

They went on radio, held public discussions before large forums, and so on, literary journals and popular journals, touched somehow upon this movement called the new humanism or American humanism in one way or another.

By 1933 there had been so many attacks upon this intellectual movement that it was beaten back.

Irving Babbitt in 1933 was dying of colitis. At this moment while Babbitt lay dying there suddenly was issued the first

Humanist Manifesto.

Dewey and his colleagues proclaimed themselves American humanists, using exactly the term already used for an entirely different group of people who were quite opposed to Dewey’s view. Babbitt had publicly criticized Dewey’s views. Suddenly Dewey and his friends seized upon this term already used by others, and converted it to their use as if the Republican Party suddenly should seize the name Democratic Party and apply it to themselves, saying, ‘we are the real democrats.’

It was a very odd performance. I suspect Dewey and his friends wanted to have the advantage of the term humanist. It’s a term that has favorable connotations. It connotes a humane person, a person who’s really human, a person who thinks about humanity. This is a good connotation. It’s a nice label to have, that of humanist. At least it has been so in the past, most of the time.

It means one is a scholar, having some connection with the Renaissance and perhaps with antiquity.

And so it was more or less deliberately that the disciples of Dewey took over this term of a beaten body of scholars. The conflict goes on.

This I write about humanism, describing it as a historical movement. But I am not speaking ordinarily about Secular Humanism. I have to make the distinction. (Tr. 1379-80).

That was a point which Irving Babbitt made strongly. He said that what various people called humanism was really humanitarianism. The term humanitarianism is used in the popular press and in many serious quarters as synonymous with ‘charitable’, which is a term of religion, of course.

Caritas

is one of the theological virtues.

The word charitable and the word charity have diminished in the popular usage and the words humanitarian and humanitarianism have been substituted.

Why so? Forgetfulness about the accurate meaning of the words as they are used in serious dictionaries. Humanitarianism is defined in the larger dictionaries as the belief that the individual and society may be perfected without the operation of divine grace.

That’s the root meaning of ‘humanitarian’; one who believes we need to use humanistic means for social and perhaps spiritual reform.

Humanitarianism means that there is no need of divine intervention to perfect the person or society. Humanitarian is one who casts aside belief in a religious system and instead works practically through social and impersonal means for improvement.

As Babbitt said, people like Dewey are not really humanists; they are humanitarians.

That is still true if we turn to the sciences of philology and etymology, that the word humanitarian means a person who doesn’t believe in divine grace and says that we can perfect ourselves without that grace; while the word humanism, which originally meant attachment to the classics in literature, is now converted into a term describing a philosophical, religious and social movement. There is great confusion about words. As Alice says to Humpty Dumpty, ‘Can you make words mean what you want them to mean?’ And Humpty Dumpty says, ‘It’s a question of who’s to be master, that’s all.’ ”

(Tr. 1381-82).

When asked what he found to criticize in secular humanism as he defined it, Dr.

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Kirk said: “Why, sir? Because it omits what Plato said was the real important thing in all his writings; the doctrine of the soul. We find in secular humanism no recognition of the soul. There is only the human animal — the naked ape, if you will. What really distinguishes us human beings from the brutes is possession of a soul. Thus the development of the spiritual is the highest aim of a good education. That is not taken into account at all by the Secular Humanists. They think of man as a mechanism, a fleshy computer. That is my primary objection.” (Tr. 1397-98).

Dr. James Hitchcock

also discussed the definitions of the terms involved.

23

Dr. Hitchcock is a professor of history at St. Louis University, having received his doctor of philosophy from Princeton in 1965. (Tr. 719-20). He traces, as a historian, the development of modern day humanism. (Tr. 734 et seq.). He states that most renaissance humanists were believers in God and wrote on theological questions. (Tr. 737). In the early part of the eighteenth century the first frontal assault occurred on traditional Judaism and Christianity by intellectuals, mainly associated with the movement referred to as the Enlightenment. This is the first time that the term humanist came to have a connotation that is capable, at least, of excluding God. (Tr. 738).

24

He goes on to say that most humanists probably had a belief in God, but God was not a working reality in their lives or their thoughts.

In the nineteenth century atheism began to be seen. Here the question of whether there was or was not a God came to the forefront because people began to question what proof there was of the existence of a God. It was during this period that the most powerful form of atheism came into being and this form denied the existence of God or said that if there was a God or one believed in God then the human race would be kept in a position of dependency and therefore childishness. (Tr. 738). This was the position of the philosophers Feuer-bach, Kark Marx and Nietzsche. It was a radically new kind of humanism. The more traditional form of humanism would have seen the two as harmonious and complimentary.

The new humanism of our century has drifted to the point where it usually denotes a godless kind of philosophy. Though there have been efforts to try to reclaim the term humanism to its original meaning, in most parts, the term today denotes a sort of godlessness. (Tr. 739).

A Christian humanist is one who places high value on man and says the reason for this high value is because man is made in the image and likeness of God and though his human nature is badly flawed, he is redeemable. Christian humanists are virtually the same as renaissance humanists. Contrasted to this is modern day humanism, which would encompass both atheistic and non-theistic humanism, sometimes referred to a secular humanism. This form of humanism excludes the divine, the supernatural, and the transcendent. It concentrates on the here and now. The word secular comes from the Latin word

seculum

which means age or time. It therefore translates to someone who is time bound to a particular period of history and doesn’t feel as though he can get beyond it. (Tr. 740-42).

Other witnesses discussed the definitions and each emphasized a different aspect as it applied to various areas in the case. It would take a reading of their entire testimony, or good parts of it, to come to an understanding of the point that they make. For example, see the testimony of Dr. Rou-sas John Rushdoony, (Orig. Tr. 294) and Dr. James Kennedy. (Orig. Tr. 606).

Dr. Delos McKown

testified at the original trial that there are three characteristics of a secular humanist. The first is that a humanist takes a naturalistic view of the cosmos and feels no reason to make affirmations about the supernatural. They may be atheistic or they may retain some vague deistic outlook, but secular deism is a naturalistic philosophy. Secondly, a humanist

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looks to science and the techniques developed as the best and safest avenue to knowledge. He does not claim infallibility. Thirdly, the secular humanist believes that morals take their origin in humanity, are centered about humanity and have man as their end. Morality has to do with living the good life. One cannot live a good life except by accident, and unless others treat you morally. (Orig. Tr. 371-83).

Dr. Paul Kurtz

was asked to define humanism spelled with a small “h” and humanism spelled with a capital “H”, and secular humanism. He said that humanism spelled with a small “h” is the oldest intellectual, moral, artistic, philosophical and literary tradition in western civilization and has its roots in the pre-Socratic early dawn of science and philosophy in the fifth and sixth century BC. (Tr. 1680). It was first stated and defined in the period in which western civilization had its roots, its laws, its speculations about justice, the nature of reality, science, art, literature, and the like. (Tr. 1689). It came down through the Renaissance and on into the scientific revolution of the sixteenth and seventeenth centuries where there was an effort to use reason as it applied to nature and to man and to use independent judgment to try to discover what is the nature of things and how they operate. (Tr. 1681-82). This scientific revolution continued into the nineteenth century with the development of physics, chemistry and biology and into the twentieth century with the development of social and behavioral sciences. Dr. Kurtz says that humanism, as he views it, is the whole body of learning and the arts and science and philosophy and ethics. (Tr. 1683).

Humanism with a capital “H” is a fairly recent development with some precursors in history, but is an organized movement of peoples today that are attempting to combine principles of humanism that cut across all fields of investigation. These people publish books, convene meetings, and try to advocate what they call the humanist point of view. It is expressed in this country by a limited number of organizations. (Tr. 1683-84).

Secular humanism is a much used and misused term. Secularism is a very deep trend in modern societies. Like the industrial revolution, it continues. It is part of modernism and refers to the development of institutions in the fields of investigation separate from the religious interests of church institutions that may prevail. (Tr. 1684).

In recent years the term has largely been used to refer to humanistic development and the point of view that is non-religious. Basically, it is a scientific, philosophical, moral or ethical and literary expression, but has certain characteristics. (Tr. 1685). It is a method of inquiry. It is a way of investigating nature and human nature. It is basic to all the sciences. (Tr. 1686).

Dr. Kurtz says “again secular humanists are not pious in the traditional sense. They don’t believe in an unseen hidden— they have no evidence for an unseen hidden or transcendent being and hence are not pious in the sense that they pray to deity.” (Tr. 1689).

Secular humanism is not a dogma, it’s not a doctrine, “but I think it does express moral values,” so says Dr. Kurtz. (Tr. 1690). It does have a belief about the cosmos but only in a limited sense. Dr. Kurtz says he hopes that it does not proselytize with zeal. (Tr. 1691). Dr. Kurtz further says that secular humanists do attempt to educate, but the very basis of secular humanism is criticism and doubt even about one’s own view. Therefore, there would be some' difficulty in saying that this education proselytizes. For example, he says Stephen Gould and E.L. Wilson, both Harvard professors, one a paleontologist and the other a social biologist, hold different theories about human societies and functions. Both of these are humanists. Also B.F. Skinner, a behavioralist, disagrees with Carl Rogers or A.H. Maslow, who are another kind of humanistic psychologist, and all of them are secular humanists. So with such conflict, it would be difficult to see how they proselytize with zeal. (Tr. 1693).

Further, Dr. Kurtz contends that secular humanism is not a creed and does not have

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an absolute claim to truth. Likewise, secular humanists have no concept of salvation and the content of the

Humanist Manifesto II

that says that no deity will save us but we must save ourselves is not a concept of salvation. (Tr. 1694).

Dr. Kurtz does say that humanistic psychology is not the same as secular humanism. He falls into a group that has been extremely critical of humanistic psychology because of its loose methodology in science. He also says that Carl Rogers, and others who advance this humanistic psychology, have a tendency to be subjectivistic and to emphasize the relativistic values of individuals where his kind of secular humanism is committed to intellectually believing that there are moral standards and moral values that can be discovered by intelligence, therefore, one must distance a whole body of secular humanistic thought from the developments in humanistic psychology. (Tr. 1696). He also says that secular humanism is not the same as the human potential movement. He does believe in keeping alive the great traditions and heritage of philosophical thought and this result of human potential movement is good, but certain aspects of the movement are too subjective and emotional and therefore defective. (Tr. 1697).

Dr. Kurtz also says that secular humanism is not the same as progressive education. Progressive educationists believe children should be permitted to do their own thing and there is no discipline in the schools at all as a result of this. Some secular and nonsecular humanists adhere to this, but it is subject to considerable criticism, especially by those who believe, as he does, that one should not release the child without producing some form of structure. (Tr. 1698).

Dr. Kurtz also states that the philosophy of John Dewey is not secular humanism because he argued for a kind of religious humanism. His followers, Sidney Hook, Ernest Nagel and Corliss Lamont felt that it was nonreligious. Others who disagree with Dewey as to any religious connotation were Bertrand Russell and Jean Paul Sartre. So in Dr. Kurtz’s opinion secular humanism is broader than the thought of Dewey. (Tr. 1699-1700).

On cross-examination Dr. Kurtz admitted that in a magazine published in 1983 he stated that there were three notions of humanism. First, one may be speaking specifically of humanist organizations and churches, and secondly, one may be speaking of the vast number of nominal humanists throughout the world, and in this sense, humanism is a dominant, moral, and religious point of view in the scientific age among the intellectuals and educated classes. The third notion is that one can speak of the humanistic revolution taking place in the Orthodox bodies. (Tr. 1753).

Dr. Kurtz admitted that in 1964 he expressed himself to the effect that the central doctrine of humanism is that value is relative to man. (Tr. 1758).

Dr. Kurtz stated that he is a member of the American Humanist Association, the Fellowship of Religious Humanists, the publisher of Prometheus books, author of the

Humanist Manifesto II

and of the

Secular Humanist Declaration.

(Tr. 1708). He is also a member of the Unitarian Universalist Fellowship in Buffalo, New York and has been for over thirty years. (Tr. 1790).

Without cataloging all of the instances brought out by the cross-examination of positions taken by Dr. Kurtz, and there are many, and what he has written on previous occasions, which criticisms Dr. Kurtz testified were taken out of context, the Court would simply refer to the transcript commencing page 1826 through 1842 and a reading of appropriate passages from plaintiffs’ exhibits 74, 75 and 76, which are books written by Dr. Kurtz or edited by Dr. Kurtz and entitled

In Defense of Secular Humanism, Exuberance

and

The Humanist Alternative.

This Court has made such an examination and finds that the form of questioning did not serve the purpose of overly distorting the position advanced by Dr. Kurtz.

Religion Defined

Those who testified as regards a definition of religion approached it from two

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points of view. One, the traditional concept; and two, the first amendment concept. It will be the Court’s purpose to simply report as briefly as possible what each of the witnesses who testified in this area had to say about it.

The first was the testimony of

Delos McKown.

He says that it would be easy to assemble 100 substantial definitions of this term, but gave this one: “A religion is a series or set of beliefs and practices relative to say, great things, belief in which unites the believer to a moral community called the church, or you could call it the synagogue or temple, it doesn’t have to be a church. But, into a believing community, a community set apart in some sense.” (Orig. Tr. 375).

Fred Wolfe,

minister of the Cottage Baptist Church in Mobile, Alabama, having a congregation of 7,600 members, and who holds a Masters of Divinity from Southwestern Baptist Theological Seminary in Fort Worth, Texas, was asked to define religion. He stated: “My definition of religion, it is a man’s or woman’s worship and expression of their faith in God.” He went on to say that religion does not have to be belief in a god as such under the rulings of the Supreme Court. A religion is a set of values and views to which a person adheres. (Orig. Tr. 212).

Dr. James Kennedy

testified on this subject also. Dr. Kennedy is a minister of the Coral Ridge Presbyterian Church in Fort Lauderdale, Florida. He holds an AB Degree from the University of Tampa, where he majored in english and education, and received his Masters in Divinity from Columbia. He holds a Masters of Theology from Chicago Graduate School and his Ph.D from New York University through the Department of Religion in the School of Education. He also holds a DD Degree. Dr. Kennedy has authored several books and a number of articles and presides over a church of some 6,000 members. (Orig. Tr. 607-08).

Dr. Kennedy was asked to give a definition of religion and in response he says that that is a difficult subject to define. He stated that the first approach that normally is made is that religion involves a belief in God and, yet, we know that there are a number of religions which are included in the world’s great religions, such as Buddhism, Confucianism, et al., that do not hold any belief in any personal god or any god at all. One reason that it eludes attempts to define it is because almost any criterion that you select will result in the discovery of a religion that is accepted as such by virtually everyone that does not hold to that particular criterion. (Orig. Tr. 609) . He goes on to say: “Probably that definition which is broadest and, therefore, has probably received the most widespread acceptance is the idea that religion involves one’s ultimate concerns in life.” (Orig. Tr. 610) .

Dr. Kennedy says that in' his belief, which is the Presbyterian concept, everything is sacred; thus they hold no distinction between the secular and the sacred. All life is sacred.

Dr. Gordon John Spykman,

a teacher of theology at Calvin College from which he obtained his AB Degree with a major in Greek and Roman culture, and whose doctoral work was done at the Free University of Amsterdam in systematic theology with minors in ethics and elenctics, described religion in this fashion. “Religion is our on-going series of responses to the claim of God upon the human race to start with.”

“Number one. One can approach religion from the point of view of cultic activities: what kinds of rituals, what kinds of meditational practices, prayers, scripture readings, holy day observances, etc.....”

“The second is religion regarded as a cultural pattern. That is to say the historical cultural realities of any given community — for example, what we would call religious art, religious music, religious artifacts, historic stands on life and death or war and peace, issues on the part of different communities — cultural patterns that are developed, let’s say, either by Islam, Judaism, Christianity or some other Christian tradition.”

... “The third is religion regarded as ultimate commitment which then gets worked out in terms of life orientation.

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These are concepts taken from Phillip Phe-nix. To put it in my own words, this third approach to religion would come down to calling it a religious world view. That is to say, it has the depth dimension of ultimate commitment but it has the scope of a world view.” (Tr. 1159-60).

Dr. James Davison Hunter,

a sociologist connected with the Department of Sociology of the University of Virginia and the holder of a Masters and Ph.D in sociology from Rutgers University, who presently teaches classes in classical social theory, was asked to give a definition of religion from the sociological standpoint. (Tr. 208-09, 249). In response to this inquiry Dr. Hunter stated that there were two main traditions in the theoretical approach to the definition of religion. These are analytically distinct approaches to the phenomenon. One has been called the substantive approach and the other has been called the functional approach. (Tr. 249-50).

The substantive approach defines religion at the very core by a variety of attributes. One of the most important is its definition of the sacred. It defines the sacred according to what is.

In the functional approach, one generally defines religion according to what it does. By this he means the meaning and/or content of the phenomenon.

The analytical distinctions are based upon different theoretical traditions. For example, the substantive approach basically comes out of the German idealist tradition or German phenomenology. The functionalist approach comes out of the French and English structuralism, as well as the German sociological materialism, or mainly the approach of critical theory or Marxist scholarship.

The substantive definition differs not in its use of the category of the sacred, but in the way it defines the sacred. The sacred is the realm of the supramundane or the transcendent. It evokes feelings of ineffable wonder and awe.

Phenomenologists are concerned with the meaning that human beings intend or impute to their own experience, thus many phenomenologists argue that religion or a particular belief system must impute religious meaning upon the sacred or upon this phenomenon. (Tr. 250-51).

As stated, the functional approach defines religion according to what it does. For the individual, religion provides a sense of order, a sense of place in life and in the cosmos, a sense of direction and meaning in life. It also provides moral coordinates by which individuals can live everyday life, a means by which they can know right from wrong, correct from incorrect, appropriate from inappropriate and so on. It also provides an explanation for such things as death.

Religion has functions at the institutional level or the societal level of the community. These involve priestly and prophetic functions.

Religion is a meaning system which emanates from the sacred and yet the sacred in this case could be any ultimate value or concern or any orientating principle adhered to by a social group. (Tr. 254). The main difference is how do you define sacred. In the substantive approach, emphasis is on the transcendent. Most social sciences adopt the functionalistic approach, but he, Dr. Hunter, follows the German phenomenology and adopts the more substantive approach.

Most social scientists would agree that filing past the body of Mao Tse-tung or Vladimir Lenin is a religious ritual in communist societies whether you consider it from the substantive or the functionalist perspective.

From the functionalist perspective, religion has become, in the literature, largely synonymous with such terms as cultural system, belief system, meaning system, moral order, moral vision ideology, and world view cosmology. (Tr. 258).

Traditional religion would be the major theisms. The functional definition, however, recognizes nontheistic religions as religion. Some of these, of course, are Confucianism, Buddhism, and the like. (Tr. 258-59). Some refer to these as functional equivalents, and even those who are of the substantive approach would recognize the

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religious nature of these functional equivalents. Another such functional equivalent is humanism. (Tr. 260).

Dr. Richard A. Baer

was asked to define religion, and in so doing he says that it is a difficult subject to define in a short order. (Tr. 804). He stated that what troubled him in trying to define the term is that it is such a big concept, so very fundamental in human existence that it becomes very difficult to define in general. (Tr. 806). Dr. Baer goes on to discuss what he considers to be various concepts of religion that prevailed at the time of the adoption of the first amendment and how that broad concept applied to most philosophies existing at the time. So when asked how the Court should define the word religion in light of historical development, he responded: “I believe that we have to focus on these elements of religion that have to do with what was at stake in the first amendment. And I believe, as I understand, that historically and philosophically and theologically and to some extent legally, what was at stake was the strong conviction which grew out of the historical experience which grew out of a sense of what was right and also a pragmatic sense. That it is not the business of the state to tell us what to believe at the deepest levels of our human existence. And that ought to apply, if we are consistent, to the state whether it is propagating traditional Christian or Jewish ideas or to the state whether it is propagating humanistic ideas as in these books that I have reviewed when they are functioning as religion.” (Tr. 811-12).

Floyd C. Enfinger, Sr.,

pastor of the First United Methodist Church in Pratt-ville, Alabama, a church of 1,400 members, is an Alabama native who obtained his theological training at the Candler School of Theology at Emory University. When asked to define religion he, too, responded that it was a very difficult term to define, but felt the simplest definition was one that he came across while studying comparative religions. It was from Cicero who said that religion is the worship of God. He went on to say that in our complex society today he tries to keep what he calls the simple traditional concept of religion, but being called upon to put it in words in this testimony he would say that it would be the sum total of a person’s thoughts, feelings, convictions, will and action in his solitude as he apprehends them to be in a relationship to a god or a divinity. (Tr. 2465).

Dr. Russell Kirk

defines religion as a body of belief and practice which has some view of the cosmos, the place of human kind in the cosmos; which posits a moral system; which has a body of doctrine or dogma; which proselytizes with zeal; and which strongly criticizes or denounces rival creeds. Most religions are theocentric, related to a belief in a deity or deities, but not all. Modern definitions of religion encompass those religions which do not believe in a transcendent order or in a divine power, but which are primarily ethical in content rather than transcendent or supernatural. (Tr. 1358-59).

The foregoing references in the transcript to definitions of religion are not intended to imply that other witnesses did not address this issue. Indeed, most witnesses who testified had some conception of the term and what it meant, but their comments were so intertwined with other aspects of their testimony that to try to extract it at this point would call for this Court’s interpretation of what they may have meant. It should be read by any who are interested.

Does Secular Humanism Fit the Description of Religion?

Dr. Russell Kirk

testified that in the sense of the extended definition of religion, secular humanism falls within the limits of the definition. This is so insofar as it is organized as a body of belief, as a body of doctrine, preaches an ethical creed and proselytizes. (Tr. 1359). According to Dr. Kirk,

Humanist Manifesto I, Humanist Manifesto II

and the

Declaration of Secular Humanism

are three documents which form a creed or body of doctrine for secular humanism. (Tr. 1372). Dr. Kirk says that Christians immanentize symbols of transcendence by claiming that one enters upon immortality through perfection in

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grace in- death. Secularists immanentize this by bringing the issue down to this world, and he says instead of salvation through grace in death, the secularists achieve the perfection of society here in this world. The equivalent of death to the secularists is passing through a form of revolution to a new order of a perfect kind. The role model for this secularist thinking, Dr. Kirk says, is the Marxist theory: revolution and then eternal changelessness here on earth, in a condition of perfect equality. This is an example of immanentizing of the eschaton — the eschaton being the essential belief, the representation of enduring reality. (Tr. 1376-77).

Dr. Kirk said he tended to call anyone religious who calls himself religious and he realizes that in the realm of the secular humanist there are those who would debate with vigor whether it constituted a religion. While he recognizes that there are both types of secular humanists, he would generally look to Dewey as the great authority in the field and the prophet of it. Dewey repeatedly declared that he was trying to found a new religion, a religion to supplant earlier religions. (Tr. 1399). These views of Dewey were succinctly stated in

Humanist Manifesto I.

(Tr. 1400). He goes on to say that as to proselytizing, he will observe that in most religious bodies there is a kind of an elite who vigorously proselytize while most members are relatively inactive. In the case of secular humanism, one may look at the vigorous zealous proselytizing of the magazine

The Humanist,

which repeatedly carries articles of a militant sort demanding that the schools be converted into instruments of humanism, their cause. (Tr. 1401).

Dr. Paul Kurtz

testified that secular humanism refers to humanistic developments and points of view that are non-religious. (Tr. 1685). It is a scientific method of unfettered opportunity to investigate any domain of human interest without preconceptions of a religious nature. (Tr. 1686). It expresses an ethical point of view and seeks to develop moral awareness and to cultivate moral sensitivity in individuals. (Tr. 1687). It does not have an element of the spiritual, (Tr. 1688) nor of the transcendent or other worldly elements. There is no element of piety or any cultic practice or worship service, (Tr. 1689) or churches or any body of doctrine. It does posit a moral system, but does not have a cosmic belief. (Tr. 1690-91). Nor does it proselytize with zeal. It does not denounce rival creeds, does not advance a universal truth, (Tr. 1693) nor does it have a concept of salvation. And, lastly, he says secular humanism does not call for a submission to a greater authority. (Tr. 1695). The

Humanist Manifestos

are not creedal statements, but simply working papers. The reason for the secular humanist declaration was to restate the outlook and ethics of secular humanism. (Tr. 1710). He likens these documents unto the Declaration of Human Rights, the Declaration of Independence, and in a different sense, the Magna Charta. (Tr. 1711).

Dr. Kurtz admits that there are other humanists with different views on this subject, and cites several examples, one appearing in the

Humanist Magazine,

published in 1983, which contained an article that in part stated: “I am convinced that the battle for human kind’s future must be waged and won in the public school classroom by teachers who correctly perceive their role as the proselytizers of a new faith, a religion of humanity. ... These teachers must be ministers of another sort, utilizing a classroom instead of a pulpit to convey humanist values in whatever subject they teach regardless of the grade level. ...” (Tr. 1729).

As to the American Humanist Association, he says the points of view held are split. Some members believe that what is espoused is a religion and others do not. (Tr. 1730).

However, Dr. Kurtz admits he did write an article, which appeared in his book

In Defense of Secular Humanism,

stating there were at least three notions of humanism. One may be a discussion of humanist organizations and churches; the second may be consideration of the vast number of nominal humanists in the United States and the world, and in this broad sense humanism is a dominant, moral and religious point

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of view in the scientific age among intellectuals and educated classes, though they may not be aware of the fact that they are humanist; and third, one may be concerned with the revolution taking place within the orthodox bodies, in liberal Protestant theology, in the Catholic reawakening, and in humanistic Judaism. (Tr. 1753-54).

He also subscribes to the philosophy of the American Humanist Association, which, in its preamble, states that one of the functions of the association is to extend its principles and operate educationally. This association publishes books, magazines, and pamphlets; engages lecturers; selects, trains, and accredits humanistic counselors as its ordained ministry of the movement; forms and charters local or area chapters as an integral part of the association; holds seminars, institutes and conferences; utilizes the mass media; and affiliates and cooperates for mutual and increased service with other associations, churches, and societies. (Tr. 1770).

Dr. Kurtz acknowledged that some members of the secular humanist movement do take an adversarial position towards theis-tie religions, (Tr. 1779) and also that the Humanist Association has been recognized as a religious minority. (Tr. 1782). They have undertaken efforts to obtain first amendment constitutional immunities and the protections afforded theistic religions. (Tr. 1783). The American Humanist Association certifies humanist counselors who enjoy the legal status of ordained priests, pastors, and rabbis. (Tr. 1784). He also acknowledges that the president of the Humanist Association published an article in the

Free Inquiry

in the 1985-1986 issue to the effect that secular humanism is a religion. Then he said this is hotly contested. (Tr. 1797).

In 1973 Dr. Kurtz wrote in the preface to the publication of the

Humanist Manifesto

to this effect, “Humanism is a philosophical, religious and moral point of view as old as civilization itself.” (Tr. 1800).

25

Dr. Kurtz republished in 1983 an article that he had published in 1968 for the

Religious Humanist

magazine which stated “Yet it is well known that restraining the definition of religion to belief in God leaves out many important religions such as Buddhism, where western notions of a god head are not present. The theist has tried to impose a narrow definition in order to corner the term religion. What is common to all religions is not the content of the religious beliefs or their truth claims, but their functions.” (Tr. 1813-14).

There are many other instances of contradictory statements of this nature throughout the testimony of Dr. Kurtz for which he gives the explanation that his philosophy has grown and changed through the passage of time and what he believed at one time he no longer believes.

Dr. Richard Baer

testified that in the early stages of secular humanism, as expressed in the

Manifestos,

in the writing of John Dewey in

A Common Faith,

and the earlier writings of Paul Kurtz and Corliss Lamont, they understood or expressed themselves to fall under the rubric of religious and they understood their atheistic humanistic beliefs to be religious and to constitute a religion. He explains that now they are saying they really didn’t mean that. “Though they talk about life meaning at its deepest level and the purposes of life and what it means to be human and called themselves religious, while they said that this is a néw religion, they didn’t really mean it in the sense that it constituted a religion.” (Tr. 810-11).

Dr. Gordon Spykman

stated this on the issue of whether humanism is a religion: “I believe humanism constitutes a religion as an alternative to, say, the Protestant, Catholic, and Jewish traditions.” The term secular humanism, naturalistic humanism, atheistic humanism, scientific humanism,

*971

says Spykman, are all of the same reality called humanism, but come from different sides or different points of view constituting different qualifiers. The term religious humanism points to the depth and dimension of its commitment. It is what, he says, Corliss Lamont would call the supreme commitment. ■ Secular humanism is talking about humanism in terms of its world view, the cosmos. It is a cosmological approach, that is, man’s place in the world. If one talks about humanism as naturalistic, it is an attempt to react against the visions of supernaturalists. If one talks about humanism as scientific, one is talking about methodology. So there are different qualifiers for the same reality. (Tr. 1160-61).

Dr. James Hitchcock

testified that there are many forms of religion that have existed throughout the history of time with varying results and beliefs. For example, historians of various times have designated movements like nationalism, communism or fascism as religions in the sense that these movements call forth total and complete dedication from their adherents and claim to teach the ultimate truth about existence. They have well developed codes of conduct or discipline, rituals, cults, and scared books. In this sense humanists have insisted very vigorously that they are a religion and that the movement they represent is religious. (Tr. 747).

He goes on to say humanism, as a self-conscious movement, is creedal. That is, it involves a set of beliefs. It has various books written intending to be expositions of humanistic teachings. These are formulated rather precisely and carefully, a claim that if you are humanist you would adhere to these positions. In addition there are organized groups which function like churches, one example being the Ethical Culture Society. There have also been attempts made to incorporate ritual into the humanist movement, and indeed, Corliss Lamont has written in one of his books that he has created a humanist burial service and it is appropriate for humanists to have such things. (Tr. 749). Also, there are certain figures in history that are revered and emulated, such as Socrates, Thomas Payne, Ralph Waldo Emerson and others. (Tr. 749). They list in various catalogues under the heading of ministers and clergy their counselors and the like. (Tr. 750).

Dr. Timothy Smith

testified that Michael French, the young historian who is head of the State Historical Society for Maryland, wrote in the Ethical Cultural Society magazine that ethical cultural people must stand up for their religion and show the virtues of their religion in controversy with the religious right in American politics. He was talking about the Ethical Cultural Society, a humanist organization. (Tr. 112). Dr. Smith also stated that the general scholarly opinion is that secular humanism, or nontheistic humanism, functions as a religion. Sociologists and anthropologists and various commentators on modern American culture make exactly this point. As Alfred North Whitehead taught at Harvard, a thing is as it operates. (Tr. 158). Dr. Smith said that atheism is not a religion because it is without a system of morals and cosmology, but nontheistic humanism is because it has a system of morals and a cosmology. (Tr. 155).

Dr. James Davison Hunter

testified that Corliss Lamont, president of the American Humanist Association, in a book called

The Philosophy of Humanism

published in 1985, or at least an edition published in 1985, refers to humanism as a religion. Also, the

Humanist Manifesto

is replete with references that humanism is a religion. (Tr. 280-81). He goes on to say that beyond this, one could note that the Ethical Culture Society describes itself as a religious fellowship, as does the Fellowship of Religious Humanists. Also, Mr. Charles Reams, president of the Humanist Association of the nation’s capítol area, applauded the United States Commission on Civil Rights for its finding that the Association of Humanists was a religious minority. (Tr. 281).

There are other references in the testimony on this issue as with other issues that the Court has heretofore catalogued, and in cataloguing these issues, the Court does not intend to imply that it has covered all of them.

*972

The Textbooks

The role that the questioned textbooks play in the educational process got mixed reviews by the various witnesses who testified. Some expressed the opinion that the teacher is more important to the learning process, the textbook simply providing the base. (See testimony of Dr. Teague, Tr. 1461, and Corrine Howell, Tr. 2183). Others expressed the view that the textbooks are the more important and dominate the structure and presentation of the curriculum. (See testimony of Dr. Halpin, Tr. 1970-71 and 1988, Dr. Strike, Tr. 966). Indeed, Dr. Kirk says that in most schools the role of the textbooks is bigger than the role of the teacher. (Tr. 1385). Dr. Spyk-man stated that the use to which curriculum materials are put depends to a large extent on teachers, but textbooks make an independent impact and are the major component in the learning process. (Tr. 1175-77).

Dr. Timothy Smith concluded that textbooks contain the greater burden and body of materials, and that teachers spend a great majority of their time helping students understand what is in the textbook. (Tr. 93-94). He further testified that a small portion of the teachers can cure the problems of omission from history books and the like, but most can not due to the time constraints under which they function. (Tr. 146). As to this, Dr. Coulson says that problems of textbooks can be cured by some teachers, as testified by Corrine Howell, Verdene Ryder and others, but unfortunately they do not come with the textbooks. (Tr. 2559-60).

Contrasted to the correction propensity of the teachers, Douglas Smith testified that as a teacher he had been directed to stick strictly with the text as it was contained in the books and express no opinion on his own, (Tr. 441-44) and Dr. Kenneth Strike stated that, where it is not clear to a teacher that he would be entitled to do these things, the likelihood is that he would be inhibited in mentioning his own point of view as a counter balance to any position taken in the textbooks. (Tr. 973).

The testimony of Dr. Teague and others was that the teachers were encouraged to use outside materials to supplement what is contained in the textbooks, however, an observation of actual classroom activity indicated, at least to Dr. Coulson, that the teachers pretty well stuck to the worksheets and instructional materials and manuals that came with the textbooks. In the main, the teachers he observed lectured from the textbooks exclusively. (Tr. 551-52, 554, 1304-06 and 2576). On this point, in the proposal entitled

A Plan for Excellence: Alabama’s Public Schools,

the State Superintendent, Dr. Wayne Teague, stated: “The textbook is perhaps the most important tool in the classroom.”, (Tr. 1669) which statement is contradictory to the position that he took when giving his oral testimony on this point.

There were a large number of textbooks introduced at the first hearing and an additional forty-five introduced at this just concluded hearing.

26

Against the contention by the defendants and defendant-inter-venors that the objectionable material contained in the textbooks was selective, out of context, and de minimis, the plaintiffs offered the testimony of many experts to demonstrate that the various books do, in fact, contain a religious philosophy or dogma, a belief system, or advance a tenet of faith that is of a religious bias, and that nothing therein presents any contrary view. These witnesses agreed, generally, that this leads to the anomaly that the state could somehow establish atheism as its official dogma, but' not theism. (Dr. Baer, Tr. 836).

27

As .to the home economics books, the state defendants contend that this is an elective course and, therefore, if any damage is done to any student, it is only done to them by this election. While the plaintiffs agree that the course is elective, they

*973

contend that fact is irrelevant. They also note that in

A Plan for Excellence: Alabama’s Public Schools,

which was adopted by the state board, there is a provision that Home and Personal Management become a mandatory one semester course. Dr. Teag-ue testified that this may never come to be. (Tr. 111).

Some examples of the effect of the teaching of the textbooks, which plaintiffs’ experts found objectionable as advancing secular humanistic morality and philosophy, are:

Telling a student that only he can decide what is right and wrong. This is to be contrasted to telling a student that he is responsible for choosing between right and wrong. The latter promotes responsibility. (Tr. 575-80). The point made is that such teaching leaves out the distinction that must be drawn between what moral values are to be freely chosen and the personal decision involved in applying these values. (Dr. Baer, Tr. 830; Dr. Coulson, Tr. 579).

The teaching that it is wrong to tell a lie because it results in the disapprobation of your fellow-man, leaves out many an example of how a theist might make this same moral decision. It implies that it is no longer a sin to tell a lie, and this is the advancement of the humanistic approach to morals which are man centered. (Dr. Coul-son, Tr. 1270-71).

Plaintiffs’ Exhibit 60, entitled

Homemaking,

contains a statement: “The development of your values is influenced by your religious beliefs and morals____” The text goes on to say on the next page that your values are “personal and subjective.” This is incoherent and advances only one moral logic that must be ultimately accepted, and that is humanism. (Dr. Baer, Tr. 828-29).

In discussing Verdene Ryder’s book, Dr. Baer quotes: “How can you prepare yourself to make the right decision? Know yourself, accept yourself and believe in yourself, establish a sound self-concept and learn to deal with your strengths and your weaknesses.” He says this statement is fine if one is a secular humanist and has that as one’s religious faith. It is not fine if one is a traditional religious Jew or a believing Christian, who believes that we can prepare ourselves to make right decisions by being conformed to the mind of Jesus Christ for the Christian, or to the Torah for the Jew. It is a totally different framework. And again, the offense is that the state is indoctrinating a captive or semi-captive student audience in one religious position, and excluding others. (Tr. 882).

Discussing another book,

Today’s Teen,

where the author deals with the acceptance of parents’ values, Dr. Baer says that the book states that six and seven year olds are content to be their mother’s daughters or their father’s sons, but then says: “However, you probably do not feel this way any more. In adolescence people begin defining the world for themselves in their own way. They no longer want to be just someone’s son or daughter. They want to be a unique person. They want to discover life and themselves on their own.” Dr. Baer says this is consistent with secular humanism. It undermines and competes with a Christian point of view which does not see particular value simply in being your unique self in the sense that your values and your choices all come from within you. Teaching this represents a competing point of view, and when presented in isolation without any mention of other points of view, becomes a form of state indoctrination in humanism. (Tr. 876).

There are many, many other instances contained in the testimony that more graphically point out the complaint of the plaintiffs, but this opinion has already been burdened and the Court will not further indulge in this effort.

28

The defendants and defendant-intervenors, in their briefs, point out wherein they think that the efforts of the plaintiffs fail because of the context in which the objectionable language is found. Any study of these positions should be looked at in the total

*974

scheme of things, keeping in mind that these specific references may advance a religion the same as if the Decalogue itself was posted on the school corridor wall.

A Conclusion

Dr. Coulson summarized the present curriculum in this fashion, and I paraphrase: Everything is commandment. (Martin Buber) The only commandment offered by the state textbooks is, “don’t forget value processing.” Teachers should not have to cover for deficiencies in them. If these books would stop trying to teach morality (which is preemptive and one-sided) they would have nothing to worry about.

“If we had textbooks that were either more representative of the diversity of views that are true in this country or stayed out of the realm of value education altogether, let the value education in the school go on around the learning activities of the school, then I don’t think any of these parents would have anything to complain of. But twenty years ago we got the idea that education ought to be somehow morally more relevant. And the only thing available that wasn’t founded on theism was John Dewey.” (Tr. 2569)

Conclusions of Law

The plaintiff classes claim a violation of the first amendment free exercise and establishment clauses, as applied to the states through the fourteenth amendment.

The State of Alabama is responsible, through its State Board of Education, for the selection of textbooks for use in the public schools in this state. The selection of textbooks is therefore state action, subject to the prohibitions of the first and fourteenth amendments. Such federal constitutional claims constitute a case or controversy within this Court’s original jurisdiction. 28 U.S.C. § 1331 .

The Court has already addressed the procedural history of this case. When the original ruling by this Court was made, it dismissed all claims, including those of the then defendant-intervenors, now plaintiffs, as being outside its jurisdiction. The state defendants in

this

ease, and the defendant-intervenors, contend now that the Court cannot consider the plaintiffs’ claims because those contentions were reversed on appeal. This is not true. There has never been any ruling on the merits as to plaintiffs’ claims, and those issues were not addressed on appeal. Perhaps this Court should have, before ruling on the original

Jaffree

case, severed the current claims and treated it as a separate case. Perhaps this case should have been given a new docket number upon reversal of the jurisdictional-constitutional ruling. Nevertheless, plaintiffs’ claims have never been tried and there was nothing to prevent them from filing a new action after this Court was told it had to consider such claims.

29

Under those circumstances, this Court can see no

jurisdictional

grounds for dismissing this action. There is now no doubt that a claim of a first amendment violation by a state is cognizable in federal court as a matter of federal law.

Wallace v. Jaffree,

472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985).

It must first be noted that this case is not about returning prayer to the schools. That was

not

the issue in this Court’s opinion in

Jaffree v. Board of School Commissioners,

554 F.Supp. 1104 (S.D.Ala. 1983), and is not the issue here. Neither does this case represent an attempt of narrow-minded or fanatical proreligionists to force a public school system to teach only those opinions and facts they find digestible. Finally, this case is not an attempt by anyone to censor materials deemed undesirable, improper or immoral. What this case

is

about is the allegedly improper promotion of certain religious beliefs, thus violating the constitutional prohibitions against the establishment of religion, applicable to the states through the Fourteenth Amendment.

Wallace v. Jaffree, supra.

*975

Three parents testified during the plaintiffs’ principal case: Robert C. Whorton, Sue Webster and Douglas T. Smith. They testified that they did

not

want their religious beliefs promoted as the truth, nor did they want to keep their children from mere exposure to contrary beliefs, or ideas espoused by secular humanism.

30

Trans, at 389-90 (Robert Whorton); 432-24, 428-29 (Sue Webster); 440-41, 447-49 (Douglas T. Smith). The Court finds that the plaintiffs herein seek objective education, not partisan indoctrination. The plaintiff-witnesses did not complain of simple exposure to improper ideas, but of systematic indoctrination. All contended that a man-centered belief-system, which they know by the appellation “secular humanism,” is promoted in the public schools to the detriment of their children’s first amendment right of free exercise, all in violation of the establishment clause.

31

A First Amendment Definition of Religion

The Supreme Court has never stated an absolute definition of religion under the first amendment. Rather, the high court’s approach has been one of deciding whether conduct in a particular case falls within the protection of the free exercise clause or the prohibitions of the establishment clause.

The court’s focus has shifted over the years from monotheism to a broad and mayhap vague notion of ultimate concerns and equivalent beliefs.

See

Choper,

Defining “Religion in the First Amendment,

1982 U.Ill.L.Rev. 579; Note,

The Sacred and the Profane: A First Amendment Definition of Religion,

61 Tex.L.Rev. 139 (1982); Note,

Toward a Constitutional Definition of Religion,

91 Harv.L.Rev. 1056 (1978). The so-called Mormon cases,

Reynolds v. United States,

98 U.S. (8 Otto) 145, 25 L.Ed. 244 (1878) and

Davis v. Bearson,

133 U.S. 333 , 10 S.Ct. 299 , 33 L.Ed. 637 (1890), treated religion as dealing with man’s relationship to his Creator. Subsequent free exercise cases, while throwing out the strict belief-action dichotomy of

Reynolds ,

involved theistic claimants, so that it was not essential to re-examine the concept of religion as monotheism.

Cantwell v. Connecticut,

310 U.S. 296 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940);

Murdock v. Commonwealth of Pennsylvania,

319 U.S. 105 , 63 S.Ct. 870 , 87 L.Ed. 1292 (1943);

West Virginia State Board of Education v. Barnette,

319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943) and

Sherbert v. Verner,

374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963) dealt with the exercise by Jehovah’s Witnesses. The school establishment cases,

Everson v. Board of Education,

330 U.S. 1 , 67 S.Ct. 504 , 91 L.Ed. 711 (1947),

McCollum v. Board of Education,

333 U.S. 203 , 68 S.Ct. 461 , 92 L.Ed. 649 (1948),

Zorach v. Clauson,

343 U.S. 306 , 72 S.Ct. 679 , 96 L.Ed. 954 (1952), and

Board of Education v. Allen,

392 U.S. 236 , 88 S.Ct. 1923 , 20 L.Ed.2d 1060 (1968), also dealt with activities or entities inarguably religious. The curriculum content and prayer cases,

Epperson v. Arkansas,

393 U.S. 97 , 89 S.Ct. 266 , 21 L.Ed.2d 228 (1968);

School District of Abington v. Schempp,

374 U.S. 203 , 83 S.Ct. 1560 , 10 L.Ed.2d 844 (1963) and

Engel v. Vitale,

370 U.S. 421 , 82 S.Ct. 1261 , 8 L.Ed.2d 601 (1962), concerned practices indisputably religious. The scope of the term religion was first carefully examined by the Supreme Court in draft exemption cases.

United States v. Seeger,

380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733

*976

(1965) and

Welsh v. United States,

398 U.S. 333 , 90 S.Ct. 1792 , 26 L.Ed.2d 308 (1970), required the Court to construe the statutory exception to the Selective Service Act. In each, the Court refused to limit the exception to theists. While the opinions are phrased in terms of statutory construction, the

Seeger

concurrence by Justice Douglas, 380 U.S. at 188 , 85 S.Ct. at 865 , and the

Welsh

concurrence by Justice Harlan, 398 U.S. at 344 , 90 S.Ct. at 1798 , state that a different interpretation would encroach on the first amendment. A number of commentators indicate that these decisions are at least constitutionally significant, if not mandated.

See, e.g.,

Bowser,

Delimiting Religion in the Constitution: A Classification Problem,

11 Val.U.L.Rev. 163,170-185 (1977); Choper,

Defining “Religion” in the First Amendment, supra,

1982 U.Ill.L.Rev. at 589; Freeman,

The Misguided Search for the Constitutional Definition of Religion,

71 Geo.L.J. 1519, 1526 n. 45 (1983); Note,

Beyond Seeger/Welsh: Redefining Religion Under the Constitution,

31 Emory L.J. 973 , 982 (1982); Note,

supra,

61 Tex.L.Rev. 139, 148; Note,

supra,

91 Harv.L.Rev. 1056, 1064.

The cases dealing with the - nature of religion from strictly a standpoint of constitutional interpretation are

Wisconsin v. Yoder,

406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972);

Sherbert v. Verner,

374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963), and

Torcaso v. Watkins,

367 U.S. 488 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 (1961).

For analyzing the permissibility of government action under the first amendment, the current line of cases begins with

Walz v. Tax Commission,

397 U.S. 664 , 90 S.Ct. 1409 , 25 L.Ed.2d 697 (1970) and

Lemon v. Kurtzman,

403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971), which created the three part test of

1) secular purpose;

2) principle or primary effect must neither inhibit or advance religion; and

3) no excessive government entanglement with religion.

Lemon,

403 U.S. at 612-13 , 91 S.Ct. at 2111 . The high court has maintained this test in

Wallace v. Jaffree,

472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985);

Widmar v. Vincent,

454 U.S. 263 , 102 S.Ct. 269 , 70 L.Ed.2d 440 (1981);

Stone v. Graham,

449 U.S. 39 , 101 S.Ct. 192 , 66 L.Ed.2d 199 (1980) and

Committee for Public Education v. Nyquist,

413 U.S. 756 , 93 S.Ct. 2955 , 37 L.Ed.2d 948 (1973). In none of these cases, however, has the Court defined religion, concentrating on constructing the effects of government activity in favor of arguably secular or clearly religious goals.

Out of these cases can be discerned several threads. First, the requirement of neutrality affirmed in every one of the above cited cases means that the Constitution protects every religious belief without regard to its theological foundations or idiosyncrasies. Second, what is religious is largely dependent on the way people in America currently think of religion, and this is a product of our past as a people. Third, the government cannot hinder or prohibit the growth of new beliefs by its definition of religion, since this growth is a product of the fundamental rights guaranteed by the first amendment. Fourth, the government is still obligated to perform its essential functions, thus reasonable boundaries may circumscribe acts performed in the name of religious freedom.

32

*977

These ideas revolve around an individualistic and subjective view of religion, as opposed to the objective test of the Mormon cases. Thus, in

Seeger, supra,

each claimant was found to have a sincere and meaningful belief that occupied “a place in the life of its possessor parallel to that filled by the orthodox belief in God.” 380 U.S. at 166 , 85 S.Ct. at 854 . The

Seeger

conscientious objectors apparently were all theistic to some extent.

Id.

at 174 , 85 S.Ct. at 858 . The Court stressed, however, the individualistic nature of such beliefs, and the “intensely personal area” with which it deait.

Id.

at 184 , 85 S.Ct. at 863 . In

Welsh, supra,

the petitioner held beliefs that were moral and ethical, and would not himself characterize them as religious, yet he was granted the exemption, the Court equating his beliefs with religious ones because they were held with equivalent strength. 398 U.S. at 343-44 , 95 S.Ct. at 1798-99. These eases represented the farthest extension of freedom of individual conscience. In

Gillette v. United States,

401 U.S. 437 , 91 S.Ct. 828 , 28 L.Ed.2d 168 (1971), the Court refused exemption to persons claiming a right to decide that a particular war was unjust.

33

The basis for the decision was basically practical and administrative.

Wisconsin v. Yoder, supra,

allowed the free exercise claim of Amish parents, but the analysis of their religious beliefs was tied heavily to the Amish’s long history, respectable character, and unblemished pattern of social conduct. The Amish system of beliefs and way of life is also theo-centric, so the existence of a religion was not at issue. More importantly,

Yoder

shows that the social and organizational characteristics of traditional religions are not irrelevant to the first amendment analysis. Proving that a belief or practice is religious is much easier if those types of factors are applicable. The Supreme Court’s decisions do not reflect, however, an attitude that these are

the crucial

factors.

In

Sherbert, supra,

the plaintiff was a Seventh-Day Adventist, who sought unemployment benefits because she lost her job after refusal to work on Saturday, her religion’s Sabbath. The Court easily found this to be a detriment suffered by reason of a religious obligation. Only Justice Douglas’ concurrence spoke in terms of freedom of conscience.

The decisions involving schools, whether public or private, reflect the Court’s uncertainty in leaving clear trail markers through what has become, at best, a quagmire. The Court has clearly stated that the state may not, through the educational process, dictate or even specifically encourage a particular religious belief. Thus, all endorsements of the Judeo-Christian scriptures as vessels of religious truth are forbidden.

Stone v. Graham, supra; Abington v. Schempp, supra; Epperson v. Arkansas, supra.

Similarly, the state may not require any particular form of worship, whether verbal prayer or physical acts.

Jaffree, supra,

105 S.Ct. 2479 ;

Engel, supra; Barnette, supra.

Direct monetary support of a religious school is forbidden,

Nyquist, supra; Lemon, supra;

as is allowing sectarian instructors to use public property during the school day,

McCollum, supra.

Moreover, neither a tuition reimbursement program nor tax deductions for

only

private school expenses are allowable.

Nyquist ..

However, tax exemptions for religious groups are legitimate.

Walz, supra.

A tuition deduction program for expenses of attending

any

elementary or secondary school is permissible.

Mueller v. Allen,

463 U.S. 388 , 103 S.Ct. 3062 , 77 L.Ed.2d 721 (1983). The state may loan texts,

Board of Education v. Allen, supra,

pay for state ordered secular tests,

Committee for Public Education v. Regan,

444 U.S. 646 , 100 S.Ct. 840 , 63 L.Ed.2d 94 (1980), or assume the cost of transportation for all students,

Everson, supra,

including those in religious schools. If public stu

*978

dents attend religious instruction off of state property, the establishment clause is not implicated,

Zorach, supra,

and the federal government may loan or give funds to sectarian

colleges

and

universities

if used for secular purposes.

Tilton v. Richardson,

403 U.S. 672 , 91 S.Ct. 2091 , 29 L.Ed.2d 790 (1971).

Perhaps the safest way to reconcile these varying opinions is to note that overt sponsorship that, as much for appearances as in reality, seems to place the state’s imprimatur on specific religious acts, contravenes the establishment clause. Laws of general application that incidentally agree with of assist a particular religion are a legitimate acknowledgment of the central importance of religious free exercise to our history and present society.

34

Any state action generally designed to encourage free exercise or allow religious expression in an open, public forum does not equal. an establishment of religion.

35

Finally, the government should not accept or deny the validity of religious beliefs, regardless of the nature of them.

36

This has been expressed a number of times by stating that the government may not “establish” irreligión or a secular belief system hostile to religion.

See Lynch v. Donnelly,

465 U.S. 668, 673 , 104 S.Ct. 1355, 1359 , 79 L.Ed.2d 604 (1984);

Schempp, supra,

374 U.S. at 225, 83 S.Ct. at 1573 ;

Zorach, supra,

343 U.S. at 314-15 , 72 S.Ct. at 684-85 ;

McCollum, supra,

333 U.S. at 211-12 , 68 S.Ct. at 465 -66 and

Barnette, supra,

319 U.S. at 642, 63 S.Ct. at 1187.

The application of these principles to the question of what constitutes a religion under the first amendment indicates that the state may not decide the question by reference to the validity of the beliefs or practices involved. Any content-based decision must inevitably result in showing favoritism to some religions and disapproval of others. The purpose of the first amendment, particularly as expressed by the free exercise clause, would be thwarted.

37

The state must instead look to factors common to all religious movements to decide how to distinguish those ideologies worthy of the protection of the religion clauses from those which must seek refuge under other constitutional provisions.

38

Any definition of religion must not be limited, therefore, to traditional religions, but must encompass systems of belief that are equivalent to them for the believer. Yet the test cannot just be one of equivalency, as

Seeger

and

Welsh

appear to un-

*979

ply.

See Seeger, supra,

380 U.S. at 166 , 85 S.Ct. at 854 ;

Welsh, supra,

398 U.S. at 339-40 , 90 S.Ct. at 1796-97 . This would just be a definition based on the beliefs validity. The Constitution exists to establish a government to effectively preserve the rights of people. The first amendment religion clauses further one aspect of that goal: the

people’s

religious freedom. Religion must therefore be defined, for first amendment purposes, in a way that protects the people’s right to define their religious beliefs, yet leaves the people’s government leeway to regulate activities to protect other rights and privileges that are unrelated to religion.

39

The Supreme Court has focused on such factors as a person’s “ultimate concern,”

Seeger-Welsh,

organizational and social structure,

Yoder ,

and on equivalency to belief in a Supreme Deity.

SeegerWelsh.

All of these are evidence of the type of belief a person holds. But all religious beliefs may be classified by the questions they raise and issues they address. Some of these matters overlap with non-religious governmental concerns. A religion, however, approaches them on the basis of certain fundamental assumptions with which governments are unconcerned. These assumptions may be grouped as about:

1) the existence of supernatural and/or transcendent reality;

2) the nature of man;

3) the ultimate end, or goal or purpose of man’s existence, both individually and collectively;

4) the purpose and nature of the universe.

In some systems these assumptions can be implied from less fundamental beliefs; in others they are stated outright. Whenever a belief system deals with fundamental questions of the nature of reality and man’s relationship to reality, it deals with essentially religious questions.

40

A religion need not posit a belief

in

a deity, or a belief

in

supernatural existence. A religious person adheres to some position on whether supernatural and/or transcendent reality exists at all, and if so, how, and if not, why. A mere “comprehensive world-view” or “way of life” is not by itself enough to identify a belief system as religious. A world-view may be merely economic, or sociological, and a person might choose to follow a “way of life” that ignores ultimate issues addressed by religions. Describing a belief as comprehensive is too vague to be an effective definition under the religion clauses; some religious persons may consider some issues as peripheral that others find central to their beliefs. Diet is one example of this.

41

Another is the devotion of some religions to a non-technological life-style, such as the Amish. A person can be religious for first amendment purposes without having rules and regulations governing every aspect of everyday conduct.

42

Equating comprehensiveness with religion results in an overinclusive definition. A religious system

should

thus be comprehensive, but only in that the potential exists to resolve as yet unasked moral questions.

There are also a number of characteristics exhibited by most known religious groups to which courts can look when trying to determine if a set of theories or

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system of ideas is religious in nature. First would be the sincerity of the adherents’ claims. In

United States v. Ballard,

322 U.S. 78 , 64 S.Ct. 882 , 88 L.Ed.2d 1148 (1944), the Supreme Court held that only the sincerity of a religious adherent’s belief, not the validity of the ideas in which faith was reposed, could be determined by a court. At times, the sincerity of a religious claim will overcome objections that it is not actually religious in nature.

See, e.g., People v. Woody,

61 Cal.2d 716 , 394 P.2d 813 , 40 Cal.Rptr. 69 (1964), in which the use of the drug peyote by native Americans was found to be religious. However, the non-religious character of a movement, as demonstrated by the adherents’ behavior, will undercut protestations of sincerity.

See, e.g., United States v. Kuch,

288 F.Supp. 439 (D.D.C.1968), in which drug use was not rendered religious by a camouflage of ritual. By the same logic, an allegedly non-religious movement may be shown by the adherent’s behavior to actually be religious.

See, e.g., Malnak, v. Yogi,

592 F.2d 197 (3d Cir.1979), in which the Science of Creative Intelligence — Transcendental Meditation was held religious, not scientific. Sincerity is an important factor because the courts are accustomed to decid-. ing questions of credibility and veracity, while the state is incompetent to issue decrees on the validity of a belief.

43

Another factor is group organization and heirachical structure,

44

which evidence the social characteristics of a movement, and show that the adherents sincerely follow a theory of human relationship.

45

Literary manifestations of a movement may also be important, particularly if they take the form of an authoritative text.

46

Ritual and worship also would be significant because they would be evidence of the religion’s belief about supernatural or transcendent reality.

Humanism A Religion?

In the present case, the plaintiffs contend that a particular belief system fits within the first amendment definition of religion. The plaintiffs’ experts used several different labels in referring to this belief system. Dr. Timothy Smith used the phrase “atheistic humanism.” Trans, at 113. Dr. James Davison Hunter used “naturalistic humanism.” Dr. William R. Coulson accepted these terms, as well as “religious humanism,” a term John Dewey used. Trans, at 498, 507. Dr. James Hitchcock used nontheistic humanism as a synonym for humanism, Trans, at 741-42, and secular humanism as encompassing atheistic and nontheistic humanism. Trans, at 742. Dr. Richard A. Baer, Jr. used “humanism” to refer to secular humanism and atheistic humanism. Trans, at 812.

47

All of the experts, and the class representatives,

48

agreed that this belief system is a religion which:

makes a statement about supernatural existence a central pillar of its logic; defines the nature of man;

sets forth a goal or purpose for individual and collective human existence; and defines the nature of the universe, and thereby delimits its purpose.

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It purports to establish a closed definition of reality; not closed in that adherents know everything, but in that everything is knowable: can be recognized by the human intellect aided only by the devices of that intellect’s own creation or discovery. The most important belief of this religion is its denial of the transcendent and/or supernatural: there is no God, no creator, no divinity. By force of logic the universe is thus self-existing, completely physical and hence, essentially knowable. Man is the product of evolutionary, physical, forces. He is purely biological and has no supernatural or transcendent spiritual component or quality. Man’s individual purpose is to seek and obtain personal fulfillment by freely developing every talent and ability, especially his rational intellect, to the highest level.

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Man’s collective purpose is to seek the good life by the increase of every person’s freedom and potential for personal development.

50

In addition, humanism, as a belief system, erects a moral code and identifies the source of morality. This source is claimed to exist in humans and the social relationships of humans. Again, there is no spiritual or supernatural origin for morals: man is merely physical, and morals, the rules governing his private and social conduct, are founded only on man’s actions, situation and environment. In addition to a moral code, certain attitudes and conduct are proscribed since they interfere with personal freedom and fulfillment. In particular any belief in a deity or adherence to a religious system that is theistic in any way is discouraged.

Secular humanism, or humanism in the sense of a religious belief system, (as opposed to humanism as just an interest in the humanities), has organizational characteristics. Some groups are more structured and heirachical, others less so. These include the American Humanist Association, the Council for Democratic and Secular Humanism, and the Fellowship of Religious Humanists.

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These organizations proselytize and preach their theories with the avowed purpose of persuading non-adherents to believe as they do. They conduct seminars and retreats, with various organizations cooperating in such activities.

These organizations publish magazines, newsletters and other periodicals, including

Free Inquiry, The Humanist

and

Progressive

World.

52

The entire body of thought has three key documents that furnish the text upon which the belief system rests as on a platform:

Humanist Manifesto I, Humanist Manifesto II,

and the

Secular Humanist Declaration.

These factors noted in the two preceding paragraphs demonstrate the

institutional

character of secular humanism. They are evidence that this belief system is similar to groups traditionally afforded protection by the first amendment religion clauses.

Furthermore, the movement has leaders, alive and deceased, who are acknowledged, even revered, as authorities on its purposes and application in daily life. These include John Dewey, Sidney Hook, Paul Kurtz and Corliss Lamont.

53

These men do not present a monolithic front,

54

and this is another factor evidencing this as a religious movement. There is a diversity of views and philosophies within the humanist community very similar to the schisms and debates existing within the Christian, Jewish and Muslim communities.

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Dr. Paul Kurtz testified that secular humanism is a scientific methodology, not a religious movement. In his testimony he attempted to make a case that humanism generally, and secular humanism in particular, is the entire body of western philosophical and scientific thought. He thus attempted to claim for this ideology the heritage of learning found in all prior western civilizations. Dr. Kurtz’s attempt to revise history to comply with his personal beliefs is of no concern to this Court. Whether his concept of history and western civilization is true is irrelevant. It may be that Dr. Kurtz really does perceive himself as one of a group of scholars committed to the continuation of this tradition. For first amendment purposes, the commitment of humanists to a non-supernatural and non-transcendent analysis, even to the point of hostility towards and outright attacks on all theistic religions, prevents them from maintaining the fiction that this is a non-religious discipline. This Court is concerned with the logic and consistency, the rationality, one might say, of Dr. Kurtz’s contention that secular humanism is not a religious system, but science. Secular humanism is religious for first amendment purposes because it makes statements based on faith-assumptions.

To say that science is only concerned with data collected by the five senses as enhanced by technological devices of man’s creation is to define

science’s

limits. These are the parameters within which scientists function. However, to claim that there is nothing real beyond observable data is to make an assumption based not on science, but on faith, faith that observable data is all that is real. A statement that there is no transcendent or supernatural reality is a

religious

statement. A statement that there is no scientific proof of supernatural or transcendent reality is irrelevant and nonsensical, because inquiry into the fundamental nature of man and reality itself may not be confined solely within the sphere of physical, tangible, observable science.

56

To demand that there be physical proof of the supernatural, and to claim that an apparent lack of proof means the supernatural cannot be accepted, is to create a religious creed. It is not scientific to say that because there is no physical proof of the supernatural, we must base moral theories on disbelief and skepticism.

57

If there is no evidence, the theory, one way or the other, has nothing to do with science. Religious persons can and do conduct rational and systematic debate on matters of

faith.

The physical sciences do not preclude religion and religious faith. They examine other areas of inquiry, and are unconcerned, yet compatible with, religious inquiry.

58

The Court is holding that the promotion and advancement of a religious system occurs when one faith-theory is taught to the exclusion of others and this is prohibited by the first amendment religion clauses.

Dr. Kurtz’s testimony that secular humanism has no religious aspect is not logical. For purposes of the first amendment, secular humanism is a religious belief system, entitled to the protections of, and subject to the prohibitions of, the religion clauses. It is not a mere scientific method

*983

ology that may be promoted and advanced in the public schools.

Religious Promotion in Textbooks?

The Court now considers whether this religious belief system of Humanism (in whatever particular strain it occurs) is involved in a constitutional controversy before this Court. As already noted,

59

the Supreme Court has declared that teaching religious tenets in such a way as to promote or encourage a religion violates the religion clauses. This prohibition is not implicated by mere coincidence of ideas with religious tenets.

60

Rather, there must be systematic, whether explicit or implicit, promotion of a belief system as a whole. The facts showed that the State of Alabama has on its state textbook list certain volumes that are being used by school systems in this state, which engage in such promotion.

The parties presented various experts who examined different types of texts. Dr. Timothy Smith and Dr. Paul Vitz conducted examinations of high school history texts.

61

Dr. Vitz analyzed all of the listed social studies books, and Dr. Hunter analyzed all non-fifth grade social studies books. The home economics books were reviewed by Dr. Coulson, Dr. Baer, Dr. Strike, Dr. Spykman, Dr. Kurtz, and Dr. Halpin. Additionally, Verdene Ryder, the author of

Contemporary Living,

Robert F. Baker and Dr. Charles Rudder testified about the quality of school textbooks in general.

The virtually unanimous conclusion of the numerous witnesses, both expert and lay, party and non-party, was that textbooks in the fields examined were poor from an educational perspective. Mere rotten and inadequate textbooks, however, have not yet been determined to violate any constitutional provision, much less the religion clauses. The Court points this out to demonstrate the predicament confronting the people who must select textbooks. As to the history books, Dr. Smith and Dr. Vitz testified that all of them omitted numerous significant

facts about

religion and religious contributions to American history. Their expert opinion was that religion was so deliberately underemphasized and ignored that theistic religions were effectively discriminated against and made to seem irrelevant and unimportant within the context of American history.

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Some of the books were worse than others, according to Dr. Smith, but none were good.

63

His opinion was that, except for one text, each of the books reviewed conveyed an historical picture biased against theistic religions.

64

The pattern in these books is the omission of religious aspects to significant American events. The religious significance of much of the history of the Puritans is ignored. The Great Awakenings are generally not mentioned. Colonial mis

*984

sionaries are either not mentioned or represented as oppressors of native Americans. The religious influence on the abolitionist, women’s suffrage, temperance, modern civil rights and peace movements is ignored or diminished to insignificance. The role of religion in the lives of immigrants and minorities, especially southern blacks, is rarely mentioned. After the Civil War, religion is given almost no play. Dr. Smith repeatedly noted that these omissions were not questions of adding material that would result in unwieldy and overlong texts. Rather, they were a matter of writing the facts with a tone and attitude ignoring or denigrating religion. The books need only, in his opinion, be rewritten to reflect these religious factors,

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not lengthened to add superfluous material.

Dr. Paul Vitz testified that he systematically analyzed the history books by the quantity and quality of references to religion. His testimony was based on the lack of appropriate references and agreed generally with Dr. Smith that the books under-emphasized or neglected the Judeo-Chris-tian tradition in American society.

The Court’s conclusion about these history books must take several factors into account. Dr. Smith, Dr. Hunter, Dr. Baer and Dr. Coulson all testified that omission of references to religion in school curriculum is detrimental to the free exercise of the excluded religion. Dr. Rudder questioned this theory. To what extent can omissions constitute a violation of the first amendment religion clauses?

First, the Supreme Court has recognized a right to not be prevented from learning material if it was excluded for religious reasons and there is a legitimate secular or non-religious (as opposed to anti-religious or irreligious) reason for teaching the material.

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See Epperson v. Arkansas, supra.

Thus an omission

can

constit

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