Mozert v. Hawkins County Board of Education

BOGGS, Circuit Judge,

concurring.

I concur with my colleagues that Hawkins County is not required by the Constitution to allow plaintiffs the latitude they seek in the educational program of these children. However, I reach that result on a somewhat different view of the facts and governing principles here. It seems that the court’s opinion rests first on the view that plaintiffs’ objection is to any exposure to contrary ideas, and that no one’s religious exercise can be burdened simply by compelled exposure, ante, at 1063-64. Second, the opinion rests on the view that no burden can exist here because plaintiffs were not compelled to engage in any conduct prohibited by, or refrain from any practice required by, their religious beliefs, ante, at 1064,1069-70.

I do not believe these attempted distinctions will survive analysis. If the situation of these children is not a burden on their religious exercise, it must be because of a principle applicable to all religious objectors to public school curricula. Thus, I believe a deeper issue is present here, is implicitly decided in the court’s opinion, and should be addressed openly. The school board recognizes no limitation on its power to require any curriculum, no matter how offensive or one-sided, and to expel those who will not study it, so long as it does not violate the Establishment Clause. Our opinion today confirms that right, and I would like to make plain my reasons for taking that position.

I

Preliminarily, as my colleagues indicate, we make no judgment on the educational, political or social soundness of the school board’s decision to adopt this particular set of books and this general curricular approach. This is not a case about fundamentalist Christians or any particular set of beliefs.1 It is about the constitutional limits on the powers of school boards to prescribe a curriculum. For myself, I approach this case with a profound sense of sadness. At the classroom level, the pupils and teachers in these schools had in most cases reached a working accommodation. Only by the decisions of higher levels of political authority, and by more conceptualized presentations of the plaintiffs’ positions, have we reached the point where we must decide these harsh questions today. The school board faced what must have seemed a prickly and difficult group of parents, however dedicated to their children’s welfare. In a similar situation, the poet Edwin Markham described a solution:

He drew a circle that shut me out—
Heretic, Rebel, a thing to flout.
But Love and I had the wit to win:
We drew a circle that took him in!2

*1074As this case now reaches us, the school board rejects any effort to reach out and take in these children and their concerns. At oral argument, the board specifically argued that it was better for both plaintiffs’ children and other children that they not be in the public schools, despite the children’s obvious desire to obtain some of the benefits of public schooling. Though the board recognized that their allegedly compelling interests in shaping the education of Tennessee children could not be served at all if they drove the children from the school, the board felt it better not to be associated with any hybrid program.

Plaintiffs’ requests were unusual, but a variety of accommodations in fact were made, with no evidence whatsoever of bad effects. Given the masses of speculative testimony as to the hypothetical future evils of accommodating plaintiffs in any way, had there been any evidence of bad effects from what actually occurred, the board would surely have presented it. As we ultimately decide here, on the present state of constitutional law, the school board is indeed entitled to say, “my way or the highway.” But in my view the school board’s decision here is certainly not required by the Establishment Clause.3

II

Returning to the treatment of plaintiffs’ free exercise claim, I believe this is a more difficult case than outlined in the court’s opinion. I disagree with the first proposition in the court’s opinion, that plaintiffs object to any exposure to any contrary idea. I do not believe we can define for plaintiffs their belief as to what is religiously forbidden to be so comprehensive, where both they and the district court have spoken to the contrary. A reasonable reading of plaintiffs’ testimony shows they object to the overall effect of the Holt series, not simply to any exposure to any idea opposing theirs. The district court specifically found that the objection was to exposure to the Holt series, not to any single story or idea. 647 F.Supp. at 1199.

Ultimately, I think we must address plaintiffs’ claims as they actually impact their lives: it is their belief that they should not take a course of study which, on balance, to them, denigrates and opposes their religion, and which the state is compelling them to take on pain of forfeiting all other benefits of public education.

Their view may seem silly or wrongheaded to some, but it is a sincerely held religious belief. By focussing narrowly on references that make plaintiffs appear so extreme that they could never be accommodated, the court simply leaves resolution of the underlying issues here to another case, when we have plaintiffs with a more sophisticated understanding of our own and Supreme Court precedent, and a more careful and articulate presentation of their own beliefs.

Under the court’s assessment of the facts, this is a most uninteresting case. It is not the test case sought, or feared, by either side. The court reviews the record and finds that the plaintiffs actually want a school system that affirmatively teaches the correctness of their religion, and prevents other students from mentioning contrary ideas. If that is indeed the case, then it can be very simply resolved. It would obviously violate the Establishment Clause for any school system to agree with such an extravagant view.

It should be noted and emphasized that if such is the holding, this decision is largely irrelevant to the national legal controversy over this case. The extent to which school systems may constitutionally require students to use educational materials that are objectionable, contrary to, or forbidden by their religious beliefs is a serious and important issue. The question of exactly how terms such as “contrary,” “objectionable,” and “forbidden,” are to be assessed in the context of religious beliefs is a subtle and interesting one. But this decision, as I understand it, addresses none of those questions. When a case arises with more sophisticated or cagey plaintiffs, or less *1075skillful cross-examination, that true issue must be faced anew, with little guidance from this decision. Since these plaintiffs’ claims are rejected because they are read to be so extreme as obviously to violate the Establishment Clause, this case is no precedent for the more specific and narrowly drawn complaint that the district court and plaintiffs’ counsel (and, to me, the plaintiffs) thought the plaintiffs were making.

I find the court’s conclusion based on its reading of the record to be unsatisfactory on the factual basis of what was said at the trial. The trial strategies of the two sides were clear. The plaintiffs understood that the more thoroughgoing and extensive their objections, the less possible would it be to accommodate them within the bounds of the Constitution. Therefore, the plaintiffs repeatedly stated their objections in terms of the overall Holt series.

The defendants equally clearly sought to depict plaintiffs’ objections in the most constitutionally offensive terms. By skillful cross-examination, they did elicit on some occasions the statements on which the court relies. I believe these two lines of apparently contradictory testimony can be reconciled by recognizing the different meanings or usage of the same words or phrases such as “objectionable,” “want,” or “opposed to.” These words can cover a gamut from mild objection or desire to constitutional insistence. Something may be “objectionable,” in the sense that one would rather it did not happen, but it is something that must be endured. Conversely, it may be “objectionable” in the sense that it should not be permitted or one should not be required to endure it. Thus, I may find Muzak on buses, or in-flight movies, “objectionable,” but that’s life.4 However, one might find the display of pornographic material in either location “objectionable” to the point that a relatively captive audience legally should not be subjected to it.

Similarly, plaintiffs may “want” a school system tailored exactly to their religious beliefs (that is why many people choose religious education), but they very well know that that is constitutionally impermissible. They “want” a particular type of accommodation that they have sought in this law suit, and they believe that they are constitutionally entitled to that. Judge Hull, who sat through eight days of trial testimony over these very issues, came to the same conclusion I do, expressed it in the form of a finding, and should not be overturned unless that finding is clearly erroneous. In my reading of the testimony, the judge’s finding is not only not clearly erroneous, but it can only be reversed by a failure to recognize a distinction between the ideal education the parents want, and that level of accommodation and education which they believe is constitutionally required and which they “want” here. Thus, I believe we must take plaintiffs’ claims as they have stated them — that they desire the accommodation of an opt-out, or alternative reading books, and no more. That is all they have ever asked for in their pleadings, in the arguments at trial and in appellate briefing and argument.

Ill

I also disagree with the court’s view that there can be no burden here because there is no requirement of conduct contrary to religious belief. That view both slights plaintiffs’ honest beliefs that studying the full Holt series would be conduct contrary to their religion, and overlooks other Supreme Court Free Exercise cases which view “conduct” that may offend religious exercise at least as broadly as do plaintiffs.

On the question of exposure to, or use of, books as conduct, we may recall the Roman Catholic Church’s, “Index Librorum Prohibitorum.” This was a list of those books the reading of which was a mortal sin, at least until the second Vatican Council in 1962.5 I would hardly think it can be contended that a school requirement that a student engage in an act (the reading of the book) which would specifically be a mortal sin under the teaching of a major organized religion would be other than “conduct prohibited by religion,” even by *1076the court’s fairly restrictive standard. Yet, in what constitutionally important way can the situation here be said to differ from that? Certainly, a religion’s size or formality of hierarchy cannot determine the religiosity of beliefs. Similarly, and analogous to our case, church doctrine before 1962 also indicated that portions of the banned books could be used or read in a context to show their error, and that references to, or small portions of, the books did not fall under the same ban.6 Again, it seems inconceivable that we would determine that a Catholic child had forfeited the right to object to committing a mortal sin by reading Hobbes because he was willing, in another context, to read small portions or excerpts of the same material.

While this argument would seem persuasive that studying objectionable material would be “conduct” contrary to religious belief, the court’s opinion attempts to distinguish our case from Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), by emphasizing that the plaintiff there was asked to “engage in a practice” forbidden by his religion, and the plaintiffs here are not. I do not believe that distinction bears up under scrutiny. Thomas had to hook up chains to a convey- or in a factory. For Thomas, there was no commandment against hooking up chains. He asserted that this would be “aiding in the manufacture of items used in the advancement of war,” because it was in a tank turret line, but he had also said that he would work in a steel factory that might ultimately sell to the military. (A fellow Witness was willing to work in the turret line.) 450 U.S. at 711, n. 4, 715, 101 S.Ct. at 1428, n. 4, 1430. This distinction appears as convoluted as plaintiffs’ distinctions seem to some. Nevertheless, Thomas drew his line, and the Supreme Court respected it and dealt with it. “[Rjeligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Id. at 714, 101 S.Ct. at 1430.

Here, plaintiffs have drawn their line as to what required school activities, what courses of study, do and do not offend their beliefs to the point of prohibition. I would hold that if they are forced over that line, they are “engaging in conduct” forbidden by their religion. The court’s excellent summary of its holding on this point, ante, at 1070, appears to concede that what plaintiffs were doing in school was conduct, but that there “was no evidence that the conduct required of the students was forbidden by their religion.” I cannot agree. The plaintiffs provided voluminous testimony of the conflict (in their view) between reading the Holt readers and their religious beliefs, including extensive Scriptural references. The district court found that “plaintiffs’ religious beliefs compel them to refrain from exposure to the Holt series.” 647 F.Supp. at 1200 (emphasis supplied). I would think it could hardly be clearer that they believe their religion commands, not merely suggests, their course of action.

If plaintiffs did not use the exact words “reading these books is forbidden by our religion,” they certainly seemed to me to make that point clearly. The court’s summary also re-emphasizes my point, supra, at 1074-75, that the importance of this holding would be greatly diminished in a future case where plaintiffs can articulate the right set of words.

IV

I have given considerable thought to Judge Kennedy’s opinion discussing the importance of the state’s interest in “critical reading” and noting the plaintiffs’ objection to such instruction. I conclude that the requirement of “critical reading,” as accomplished in Tennessee, does not constitute a burden on the free exercise of religion for these plaintiffs separate from the required studying of the Holt books.

The most difficult case would be if the state were teaching “critical reading” in the sense that plaintiffs were told to believe (or were downgraded for not believing) that values comes from within oneself, rather than from an external religious source. If this were the case, I think it clear that such teaching would violate the *1077Establishment Clause. Thus, if a pupil upon confronting one of the “moral dilemma” stories in the Holt series were to respond, “I believe you should do x because that’s what the Bible tells us to do,” the school may not attempt to argue the pupil out of it, or downgrade the pupil for not undertaking a supposedly “more sophisticated” analysis.

I do not understand Tennessee to be arguing to the contrary. Tennessee’s representatives’ own statements of what they are doing is somewhat muddled. The affidavit of County Superintendent Snodgrass says that the schools do not teach “any particular value” and that the schools “teach and promote reading, not values.” On the other hand, other statements of the state’s position emphasized the values which are being taught. Defendants’ expert on the teaching of reading, Dr. Farr, indicates that the author of the series wants students “to use their own value systems to respond” to the materials, with no indication that there would be any downgrading for using value systems that are religious.

Whether or not Tennessee insists on students responding to literature based only on self-centered values, I disagree with the idea that such a teaching of “critical reading” would constitute a compelling state interest which entitles the school board to deny plaintiffs the accommodation they seek. Ante, at 1070-71. The school board argues that “critical reading” is something so special that in the words of Farr, “it would be almost impossible to [teach critical reading consistent with the plaintiffs’ religious objections].” This notion seems difficult to support. The simple answer to such a claim would seem to be the type of testing which is mandated for all non-public school students in Tennessee. Plaintiffs are quite confident of their ability to pass any consistent tests propounded by the state. Perhaps because of these facts, the state seems unwilling to rest its claims of educational damage on any such tests, and expounds a particularly slippery standard for “critical reading.” In particular, when Farr is asked (on direct examination, by the school board’s own attorney) if plaintiffs’ children, who are getting good grades, must be learning what the state wants them to, he replies, “It’s very difficult to measure evaluative and critical reading____ It would be very difficult to know that if that youngster is making adequate progress.”

It seems to me to be extremely difficult, not to say unfair, to rest a compelling state interest on the asserted failure of plaintiffs to learn something which defendants are apparently unable to define and unwilling to test for. Mr. Justice Stewart has been unfairly derided as propounding an obscenity test of, “I know it when I see it,” Jacobellis v. Ohio, 378 U.S. 184, 187, 84 S.Ct. 1676, 1677, 12 L.Ed.2d 793 (1964), but it appears that the school board here seeks that kind of test for critical reading. Their view seems to be that if we are teaching it in the state classrooms, critical reading must be happening, but if plaintiffs are learning reading outside that class (and testing as well as, or better than, the average state student), it must not be happening. I cannot agree with any such analysis of the state’s interest in “critical reading.” 7

In any event, the test for a compelling interest is quite strict, and requires far more than this or other speculations on possible future evils. To be compelling, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430. See Hobbie v. Unemployment Comm., — U.S. -, 107 S.Ct. 1046, 1049-50, 94 L.Ed.2d 190 (1987); Thomas, 450 U.S. at 718-19, 101 S.Ct. at 1432. In *1078the absence of any testimony as to actual problems from the accommodation that was provided, it is difficult to see how this standard could be met, if a constitutional burden were established.

V

Thus, I believe the plaintiffs’ objection is to the Holt series as a whole, and that .being forced to study the books is “conduct” contrary to their beliefs. In the absence of a narrower basis that can withstand scrutiny, we must address the hard issues presented by this case: (1) whether compelling this conduct forbidden by plaintiffs’ beliefs places a burden on their free exercise of their religion, in the sense of earlier Supreme Court holdings; and (2) whether within the context of the public schools, teaching material which offends a person’s religious beliefs, but does not violate the Establishment Clause, can be a burden on free exercise.

Determining whether the school board’s action places a substantial burden on the plaintiff’s free exercise of their religion requires a determination of the scope of the religious beliefs or practices protected by the Free Exercise Clause. Although the Supreme Court has shied away from attempting to define religion, the past forty years has witnessed an expansion of the court’s understanding of religious belief. The concept of religion has shifted from a fairly narrow traditional theism, Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890); United States v. Macintosh, 283 U.S. 605, 633-34, 51 S.Ct. 570, 578, 75 L.Ed. 1302 (1931) (Hughes, C.J., dissenting), overruled, Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946), to a broader concept providing protection for the views of unorthodox and nontheistic faiths, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 658-59, 63 S.Ct. 1178, 1194-95, 87 L.Ed. 1628 (1943); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961); United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). This expanded definition has been praised by many commentators, who argue for a definition of religion in the Free Exercise Clause that would protect practices based on an individual’s belief system involving matters of ultimate concern, Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056, 1072-75 (1978). Others support an interpretation which would provide protection for all beliefs that are “arguably religious.” L. Tribe, American Constitutional Law § 14-6, at 828 (1978). The plaintiffs here have no problem fitting within any of the Court’s various definitions of religion, as no one contends that their basic beliefs are not religious.

However, determining that plaintiffs’ beliefs are religious does not automatically mean that all practices or observances springing from those beliefs are entitled to the same amount of protection under the Free Exercise Clause. At one point, the Court made a distinction between religious beliefs and actions, indicating that the government could never interfere with belief or opinion, but could always regulate practices. United States v. Reynolds, 98 U.S. (8 Otto) 145, 166, 25 L.Ed. 244 (1878). This distinction did not hold, as the Court has provided protection for such religious conduct as soliciting contributions, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and of course, observing one’s chosen Sabbath, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), or refusing to work on armaments. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).

There remains the question of which religious conduct may not be burdened (and thus must be accommodated unless a compelling interest justifies it), by government action. One theory would draw the line between actions that are compelled or dictated by religious belief and those that are merely motivated or influenced by these beliefs. “Not all actions are necessarily required (duties) or forbidden (sins); religion addresses what is ‘better’ as well as what is ‘good.’ ” M. McConnell, Accommodation of Religion, [1985] S.Ct.Rev. 1, 27 (discussing permissive rather than mandatory accommodation).

*1079The most expansive view of the Free Exercise Clause would be to scrutinize any governmental burden on any activity that is arguably religious and require a balancing test between the government’s interest and the burden on the activity. However, the Supreme Court has never gone so far, especially in the context of the public schools. The court has continued to struggle with the questions of which religious actions are protected and how significant the burden on that activity must be in order to trigger the strict scrutiny of the Free Exercise Clause. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), held that the state’s compulsory schooling requirement unduly burdened the free exercise of the religious beliefs of the Old Order Amish. The Court stressed that the Amish mode of life was “essential,” “fundamental,” and “central” to their religious beliefs and that their religious community would be gravely endangered if not destroyed by the state requirement. Id. at 218-19, 92 S.Ct. at 1534-35. While Yoder did not rest on Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and was decided before Thomas, its language is considerably less expansive as to the exercise that should not be burdened than are those cases.

For me, the key fact is that the Court has almost never interfered with the prerogative of school boards to set curricula, based on free exercise claims. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), may be the only case, and even there a specific affirmation was required, implicating a non-religious First Amendment basis, as well.

From a common sense view of the word “burden,” Sherbert and Thomas are very strong cases for plaintiffs. In any sensible meaning of a burden, the burden in our case is greater than in Thomas or Sherbert. Both of these cases involved workers who wanted unemployment compensation because they gave up jobs based on their religious beliefs. Their actual losses that the Court made good, the actual burden that the Court lifted, was one or two thousand dollars at most. Although this amount of money was certainly important to them, the Court did not give them their jobs back. The Court did not guarantee they would get any future job. It only provided them access to a sum of money equally with those who quit work for other “good cause” reasons.

Here, the burden is many years of education, being required to study books that, in plaintiffs’ view, systematically undervalue, contradict and ignore their religion. I trust it is not simply because I am chronologically somewhat closer than my colleagues to the status of the students involved here that I interpret the choice forced upon the plaintiffs here as a “burden.”

VI

However, constitutional adjudication, especially for a lower court, is not simply a matter of common sense use of words. We must determine whether the common sense burden on plaintiffs’ religious belief is, in the context of a public school curriculum, a constitutional “burden” on their religious beliefs.

I do not support an extension by this court of the principles of Sherbert and Thomas to cover this case, even though there is a much stronger economic compulsion exercised by public schooling than by any unemployment compensation system. I think the constitutional basis for those cases is sufficiently thin that they should not be extended blindly. The exercise there was of a narrow sort, and did not explicitly implicate the purposes or methods of the program itself.

Running a public school system of today’s magnitude is quite a different proposition. A constitutional challenge to the content of instruction (as opposed to participation in ritual such as magic chants, or prayers)8 is a challenge to the notion of a politically-controlled school system. Imposing on school boards the delicate task of satisfying the “compelling interest” test to *1080justify failure to accommodate pupils is a significant step.9 It is a substantial imposition on the schools to require them to justify each instance of not dealing with students’ individual, religiously compelled, objections (as opposed to permitting a local, rough and ready, adjustment),10 and I do not see that the Supreme Court has authorized us to make such a requirement.

Our interpretation of these key phrases of our Bill of Rights in the school context is certainly complicated by the fact that the drafters of the Bill of Rights never contemplated a school system that would be the most pervasive benefit of citizenship for many, yet which would be very difficult to avoid. See, e.g., Jernigan v. State, 412 So.2d 1242 (Ala.1982), for the criminal conviction of Catholic parents who lived too far from a Catholic school, and thus did not send their child to school.

The average public expenditure for a pupil in Hawkins County is about 20% of the income of the average household there. Even the modest tuition in the religious schools which some plaintiffs attended here amounted to about a doubling of the state and local tax burden of the average resident.11 Had the Founders recognized the possibility of state intervention of this magnitude, they might have written differently. However, it is difficult for me to see that the words “free exercise of religion,” at the adoption of the Bill of Rights, implied a freedom from state teaching, even of offensive material, when some alternative was legally permissible.12

Therefore, I reluctantly conclude that under the Supreme Court’s decisions as we have them, school boards may set curricula bounded only by the Establishment Clause, as the state contends. Thus, contrary to the analogy plaintiffs suggest, pupils may indeed be expelled if they will not read from the King James Bible, so long as it is only used as literature, and not taught as religious truth. See Abington School Dist. v. Schempp, 374 U.S. 203, 224-25, 83 S.Ct. 1560, 1572-73, 10 L.Ed.2d 844 (1963); Donahoe v. Richards, 38 Me. 379, 61 Am.Dec.256 (1854). Contrary to the position of amicus American Jewish Committee, Jewish students may not assert a burden on their religion if their reading materials overwhelmingly provide a negative view of Jews or factual or historical issues important to Jews, so long as such materials do not assert any propositions as religious truth, or do not otherwise violate the Establishment Clause.

The court’s opinion well illustrates the distinction between the goals and values that states may try to impose and those they cannot, by distinguishing between teaching civil toleration of other religions, and teaching religious toleration of other religions, ante, at 1069. It is an accepted part of public schools to teach the former, and plaintiffs do not quarrel with that. Thus, the state may teach that all religions have the same civil and political rights, and must be dealt with civilly in civil society. The state itself concedes it may not do the latter. It may not teach as truth that the religions of others are just as correct as religions as plaintiffs’ own.

It is a more difficult question when, as here, the state presents materials that plaintiffs sincerely believe preach religious toleration of religions by consistent omission of plaintiffs’ religion and favorable presentation of opposing views.13 Our *1081holding requires plaintiffs to put up with what they perceive as an unbalanced public school curriculum, so long as the curriculum does not violate the Establishment Clause. Every other sect or type of religious belief is bound by the same requirement. The rule here is not a rule just for fundamentalist dissenters, for surely the rule cannot be that when the school authorities disagree with non-fundamentalist dissenters, the school loses (See, e.g., Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), Spence v. Bailey, 465 F.2d 797 (6th Cir.1972); Edwards v. Aguilard, — U.S.-, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1986)), and when the school authorities disagree with fundamentalists, the school wins (See, e.g., Mozert; Grove v. Mead School Dist., 753 F.2d 1528 (9th Cir. 1985); Wright v. Houston Ind. School District, 366 F.Supp. 1208 (S.D.Tex.1972)). Rather, unless the Supreme Court chooses to extend the principle of Thomas to schools, the democratic principle must prevail.14

Schools are very important, and some public schools offend some people deeply. That is one major reason private schools of many denominations — fundamentalist, Lutheran, Jewish — are growing.15 But a response to that phenomenon is a political decision for the schools to make. I believe that such a significant change in school law and expansion in the religious liberties of pupils and parents should come only from Supreme Court itself, and not simply from our interpretation. It may well be that we would have a better society if children and parents were not put to the hard choice posed by this case. But our mandate is limited to carrying out the commands of the Constitution and the Supreme Court.

I therefore concur in the result and reverse the judgment of the District Court.

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

. E. Markham, “Outwitted,” in Best Loved Poems of the American People, p. 67 (Garden City, 1957)

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

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

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

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

. At times, the school board’s position recalls the scene in a modern classic, where a little girl entering first grade is told: "Now you tell your father not to teach you any more. It’s best to begin reading with a fresh mind. You tell him I’ll take over from here and try to undo the damage — ." Discussing this later with her older brother, she is told that it's "a new way of teaching. [Teacher] learned about it in college. It’ll be in all the grades soon.... It’s the Dewey Decimal System.” H. Lee, To Kill a Mockingbird, pp. 22-23 (Warner Books, 1982).

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

. I do not think there is any evidence that actually accommodating pupils in practice need be as difficult as the state contends. Indeed, the state espouses a theory of rigidity (and finds alleged experts to support it) that seems a bit ludicrous in this age of individualized attention to many kinds of student language and interest. There was no evidence of actual confusion or disruption from the accommodation that did take place.

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

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

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

. For example, they noted that of 47 stories referring to, or growing out of, religions (including Islam, Buddhism, American Indian reli*1081gion and nature worship), only 3 were Christian, and none Protestant. A competing reader even bowdlerized the word ‘‘God” out of I.B. Singer’s intensely religious stories. New York Times, August 2, 1987, Education Life, pp. 20-21.

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

. See B. Cooper, The Changing Demography of Private Schools, in 16 Education and Urban Society, 429-42 (Sage Publ.1984) (Between 1965 and 1983, enrollment in Lutheran schools grew 35%; in Jewish schools 37%; in non-religious private schools 69% and in all non-Catholic private schools over 130%, National Center for Educational Statistics (1983)); Charles Glenn (Massachusetts Director of Equal Educational Opportunity), Phi Delta Kappan, Feb. 1987, p. 452; U.S. Department of Education, Digest of Education Statistics, pp. 47-48.