Mozert v. Hawkins County Board of Education

CORNELIA G. KENNEDY, Circuit Judge,

concurring.

I agree with Chief Judge Lively’s analysis and concur in his opinion. However, even if I were to conclude that requiring the use of the Holt series or another similar series constituted a burden on appellees’ free exercise rights, I would find the burden justified by a compelling state interest.

Appellants have stated that a principal educational objective is to teach the students how to think critically about complex and controversial subjects and to develop their own ideas and make judgments about these subjects. Several witnesses testified that the only way to achieve these objectives is to have the children read a basal *1071reader, participate in class discussions, and formulate and express their own ideas and opinions about the materials presented in a basal reader. Thus, appellee students are required to read stories in the Holt series, make personal judgments about the validity of the stories, and to discuss why certain characters in the stories did what they did, or their values and whether those values were proper. Appellee parents testified that they object to their children reading the Holt readers, being exposed to controversial ideas in the classroom, and to their children making critical judgments and formulating their own ideas about anything for which they believe the Bible states a rule or position.1

In Bethel School Dist. No. 403 v. Fraser, — U.S. -, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986), the Supreme Court stated: “The role and purpose of the American public school system was well described by two historians, saying ‘public education must prepare pupils for citizenship in the Republic.’ ” Additionally, the Bethel School Court stated that the state through its public schools must “inculcate the habits and manners of. civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” Id. (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)).2 Teaching students about complex and controversial social and moral issues is just as essential for preparing public school students for citizenship and self-govemment as inculcating in the students the habits and manners of civility.

The evidence at trial demonstrated that mandatory participation in reading classes using the Holt series or some similar readers is essential to accomplish this compelling interest and that this interest could not be achieved any other way. Several witnesses for appellants testified that in order to develop critical reading skills, and therefore achieve appellants’ objectives, the students must read and discuss complex, morally and socially difficult issues. Many of these necessarily will be subjects on which appellees believe the Bible states the rule or correct position. Consequently, accommodating appellees’ beliefs would unduly interfere with the fulfillment of the appellants’ objectives. Cf. United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127 (1982). Additionally, mandatory participation in the reading program is the least restrictive means of achieving appellants’ objectives. Appellees’ objections would arise even if the School Board selected another basal reading textbook series since the students would be required to engage in critical reading and form their own opinions and judgments on many of the same issues.

The state and the Hawkins County School Board also have a compelling interest in avoiding disruption in the classroom. Hawkins County Schools utilize an integrated curriculum, designed to prepare students for life in a complex, pluralistic society, that reinforces skills and values taught *1072in one subject in other areas. The Director of Elementary Education testified that teachers use every opportunity within the school day to reinforce information taught in the different subject areas. For example, the students may discuss stories in the Holt readers dealing with evolution or conservation of natural resources in the science course. This approach to learning is well-recognized and enables the students to see learning “as part of their total life, not just [as] bits and pieces.” Taylor at 1270-71. This is particularly true in grades one through four where reading is taught throughout the school day, rather than in a particular period. Appellants would be unable to utilize effectively the critical reading teaching method and accommodate appellees’ religious beliefs. If the opt-out remedy were implemented, teachers in all grades would have to either avoid the students discussing objectionable material contained in the Holt readers in non-reading classes or dismiss appellee students from class whenever such material is discussed. To do this the teachers would have to determine what is objectionable to appellees. This would either require that appellees review all teaching materials or that all teachers review appellees’ extensive testimony. If the teachers concluded certain material fell in the objectionable classification but nonetheless considered it appropriate to have the students discuss this material, they would have to dismiss appellee students from these classes.3 The dismissal of appellee students from the classes would result in substantial disruption to the public schools.

Additionally, Hawkins County Public Schools have a compelling interest in avoiding religious divisiveness. The Supreme Court has emphasized that the avoidance of religious divisiveness is nowhere more important than in public education, for “[t]he government's activities in this area can have a magnified impact on impressionable young minds____” Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985). The opt-out remedy would permit appellee students to be released from a core subject every day because of their religion. Thus, although some students in the Hawkins County schools are presently released from class during the school day for special instruction, these students are not released because they have a religious objection to material being presented to the class. The present case is distinguishable from this Court’s decision in Spence v. Bailey, 465 F.2d 797 (6th Cir.1972), inasmuch as the student in Spence was permitted to not participate in the school’s R.O.T.C. program, a non-core subject. There is less divisiveness in excusing someone from military training then in excusing them from discussing a multitude of ideas. Accordingly, the opt-out remedy ordered by the court is inconsistent with the public schools’ compelling interest in “promoting cohesion among a heterogenous democratic people.” Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 216, 68 S.Ct. 461, 468, 92 L.Ed. 649 (1948) (Frankfurter, J., concurring).

The divisiveness and disruption caused by the opt-out remedy would be magnified if the schools had to grant other exemptions. Although the District Court found that no other objections to the Hawkins County public school curriculum have been raised and that Hawkins County is homogeneous from a religious perspective, this case would create a precedent for persons from other religions to request exemptions from core subjects because of religious objections.4 If the school district were re*1073quired to accommodate exceptions and permit other students to opt-out of the reading program and other core courses with materials others found objectionable, this would result in a public school system impossible to administer. As Justice Jackson stated in McCollum, every parent:

has as good a right as this plaintiff to demand that the courts compel the schools to sift out of their teaching everything inconsistent with its doctrines. If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant law suits.

333 U.S. at 235, 68 S.Ct. at 477.

Accordingly, I also would reverse the judgment of the District Court for these additional reasons, as well as the reasons so well stated by Chief Judge Lively.

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

. Last term the Court recognized that public school officials have considerable discretion in structuring their curriculum to achieve these results. Edwards v. Aguillard, — U.S.-, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Court recognized that “[tjhere is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with a legislative policy.” Id. at 475, 97 S.Ct. at 2383 (footnote omitted). The Maher Court acknowledged its decision in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), where the Court upheld a parent’s right to have his child taught a particular foreign language, and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), where it upheld a parent’s right to send his child to private school. Nevertheless, the Court stated:

neither case denied to a State the policy choice of encouraging the preferred course of action. Indeed, in Meyer, the Court was careful to state that the power of the State "to prescribe a curriculum” that included English and excluded German in its free public schools "is not questioned.” Similarly, Pierce casts no shadow over a State’s power to favor public education by funding it — a policy choice pursued in some States for more than a century.

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

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

. In United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), the Court, in an unanimous opinion, considered whether imposition of Social Security taxes on the Amish violated the free exercise clause because the Amish contended that it was against their religious beliefs to receive public insurance benefits and pay into public insurance funds. Although finding that participation in the program burdened the free exercise of their religion, the Court concluded that participation in the program was essential to accomplish the overriding governmental interest. Id. at 257-58, 102 S.Ct. at 1055. The Court emphasized that mandatory participation in the social security system was indispensable to the vitality of the system, and if participation were voluntary, it would under*1073mine the effectiveness of the program. Additionally, the Court stated that the social security system could not accommodate exceptions that could arise from a large number of religious beliefs. Id. at 260, 102 S.Ct. at 1056.