Law: Going Back to the Books

It was a week for unburning the books. In two major cases just two days apart, Fundamentalist Christians were dismayed to see federal appeals courts throw out earlier rulings against public school textbooks. As a result, pupils returning to reading classes in Hawkins County, Tenn., can still be required to tackle the themes in The Wizard of Oz and The Diary of Anne Frank, among a * host of other books deemed “godless” by a group of parents. And in Alabama, teachers will still be using 44 texts that Fundamentalists had sued to remove for promoting the “religion” of secular humanism.

In the Tennessee case, a three-judge panel of the Sixth Circuit Appeals Court in Cincinnati ruled unanimously that public school students can be required to read and discuss the disputed books, even though parts of those books might conflict with their beliefs. In a suit they brought in 1983, seven Fundamentalist families had contended that exposing their children to such material violated the First Amendment right to the free exercise of religion. Citing more than 400 objectionable passages, the parents charged that the readings taught such taboo topics as evolution, feminism, situational ethics and belief in the occult.

In 1986 Federal Judge Thomas Hull ruled for the families, ordering that their children be allowed to sit out the reading classes. He also ordered the school board to pay the families more than $50,000 in damages. In overturning the decision last week, Appellate Judge Pierce Lively wrote that Hull had failed to distinguish between simply reading or talking about other beliefs and being compelled to adopt them. “There was no evidence,” Lively declared, “that the conduct required of the students was forbidden by their religion.”

The Alabama case, which also involved a group of Fundamentalist parents as plaintiffs, hinged upon a different provision of the First Amendment, the establishment clause, which undergirds church and state separation. In March, Federal Judge W. Brevard Hand ruled that 44 history, social studies and home economics books used throughout the state violated the establishment clause by promoting what he designated a religion, secular humanism. It teaches, he said, “that salvation is through one’s self rather than through a deity.”

In unanimously overturning Hand’s decision, the three-judge panel of the 11th Circuit Appeals Court in Atlanta sidestepped the issue of whether secular humanism is a religion. Even assuming that it were a religion, wrote Appellate Judge Frank Johnson Jr., the plaintiffs had failed to show that the books promoted secular humanism. The information in the books, Johnson argued, was “essentially neutral in its religious content.” Hand had also maintained that the history and social studies texts had been drained of virtually all mentions of the role of religion in society. That may be true, Johnson & responded, but it did not constitute “an advancement of secular humanism or an active hostility toward theistic religion.”

The decisions were greeted with relief by school officials and disappointment by Fundamentalists. “If we continue pursuing change,” said Alabama Plaintiff Douglas Smith, undaunted, “things may swing back the other way.” Appeals to the Supreme Court are planned. But only two months ago the high court ruled 7 to 2 that Louisiana could not require public schools to teach “creation science.” With last week’s two new losses, the Fundamentalist strategy of using constitutional cases to restore religion to the school curriculum looks to be in tatters. “These two are the last of the coordinated and systematic attacks by a politicized Fundamentalist movement,” said Ira Glasser of the American Civil Liberties Union, which helped win the Alabama case. “There aren’t a large number of avenues open to them,” agreed Law Professor Carl Esbeck of the University of Missouri at Columbia.

But Fundamentalists may have made one enduring point. The Alabama case helped dramatize the extent to which many textbooks have been purged not merely of religious dogma but also of references to the role of religion in history. “The textbook manufacturers are going to be calling in consultants to see what they should be doing about this,” predicted Law Professor Michael McConnell of the University of Chicago. “The consequence is going to be a more balanced approach.” Deciding how to teach the historical facts of religion without promoting its tenets is a delicate task. Nonetheless, it is one that a nation intent on smartening up its schoolbooks may have to tackle.