Full opinion text
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. 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. 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. 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. 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. 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 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. 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 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 himself 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). 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. 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. 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. 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. 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 County 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. 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). 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). 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 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. 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. 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 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-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. The state defendants then offered Dr. Charles Rudder, currently employed with Auburn University at Montgomery teaching a course in history and philosophy of education. Dr. Rudder states that it is not possible for a teacher to teach without 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 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, 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 pattern. 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. 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. Dr. Coulson r