










































Publication Draft – SSCH – 2004


The Reagan-Era Right and the Fight for ‘Religious’ Equality in the Classroom 
Robert Daniel Rubin 

Indiana University, Bloomington 
 

Abstract:  The 1980s witnessed the resurgence of 
religious conservatism in politics and law.  For 
decades, the Supreme Court had required a “wall of 
separation” to insulate students from organized prayer, 
Bible reading, and the promotion of religious values in 
the public-school classroom.  Reagan administration 
officials and their supporters sought to crumble that 
wall by advocating the insertion of religion into 
textbooks and classroom exercises.  In the 1982 case 
Jaffree v. Board of School Commissioners, evangelical 
Christian lawyers attacked the “wall of separation” 
theory by arguing that the very secularism that 
purportedly ensured religious neutrality did itself 
constitute a religion—the “religion” of secular 
humanism.  The judge hearing the case agreed, 
asserting that the First Amendment’s prohibition 
against an establishment of religion required the 
schools to treat theistic and secular “religions” 
equally.  Key conservative officials applauded the 
ruling, which helped advance the New Right’s 
movement to Christianize America’s public schools. 
 
 
 In November 1982 a pair of evangelical 
lawyers, Tom Kotouc and Bob Sherling, questioned 
witnesses at an extraordinary trial.  Jaffree v. Board of 
School Commissioners of Mobile County (554 F.Supp. 
1104 [1983]) pitted a religious agnostic and father of 
three public school children against the school board 
of Mobile County, Alabama, which stood accused of 
violating the First Amendment’s ban on government 
endorsement of religion.  At trial the Mobile school 
system defended its teachers’ practice of leading 
students in prayer during school hours.  Kotouc and 
Sherling’s clients, a group of six hundred evangelicals 
from Alabama, entered the case as intervenors—
concerned citizens who supported the schoolteachers’ 
and students’ rights to pray aloud, in organized 
fashion, at any time throughout the school day.  Yet, 
although the intervenors were designated as 
codefendants alongside the school board, their lawyers 
did not simply follow the school board’s lead.  The 
intervenors at once complemented and complicated 
the school board’s position by charging that, if Mobile 
public schools had discriminated against anyone, it 
was the Christian majority of students who wished 
simply to practice their faith openly and sincerely.  
According to the intervenors, the curricula and 
textbooks used in the schools privileged the secularist 
minority.  And that, they argued, violated the First 
Amendment by establishing a religion—the religion of 
secular humanism. 
 The intervenors in Jaffree v. Board were 
implementing a twenty-year-old argument that the 
textbooks and pedagogical methods employed by 
America’s public educators were propagating a 

liberal, secular-humanist “religion” alien to the 
majority of American citizens.  Now, during the 
Reagan era, activists, politicians, and critics were 
refining this narrative and demanding that government 
and law reflect its premises.  The New Right of the 
late 1970s and 1980s emphasized the virtues 
possessed by “ordinary” citizens—as opposed to the 
selfish, decadent cosmopolitanism of the “cultural 
elite”—and championed the right of elected 
representatives within individual states to regulate 
family and community life (Macedo 1987).  The 
campaign to restrict the influence of secular 
humanism in the public schools encapsulated both the 
New Right’s political majoritarianism and its moral 
traditionalism.  Critics of the textbooks, teaching 
methods, and anti-prayer policies of the nation’s 
public schools imagined large swaths of the United 
States populated by a conservative, “moral” majority.  
Throughout the South and West especially, where 
Biblical norms enjoyed their greatest influence, lay 
those states on which New Right curricular reformers 
pinned their hopes (Provenzo 1990; Detweiler 1999). 
 Alabama was one such state.  Ishmael 
Jaffree, an African American lawyer and religious 
agnostic, had arrived in Alabama from Cleveland, 
Ohio, in 1976.  Having long concluded that the devout 
Christianity of his childhood was false and 
destructive, Jaffree determined to raise his children as 
free thinkers who grounded their beliefs in reason and 
evidence rather than religious doctrine.  He expressed 
surprise on learning that many Mobile public school 
teachers were leading their students—including three 
of his own children—in the daily recitation of grace.  
Jaffree’s surprise turned to  outrage when his 
children’s teachers, their principals, and the 
superintendent of schools turned a deaf ear to his 
complaints.  In June 1982 Jaffree filed suit in federal 
court against the Mobile school system (Newman 
1985b; Irons 1990, 357–78).  

Neither the teachers’ religious exercises nor 
their insensitivity to his complaints should have 
surprised Jaffree.  Since World War II, Mobile had 
become the most religiously-conservative city in this 
religiously-conservative state.  Few Mobilians saw 
anything wrong with classroom prayer or wished to 
see it purged (Flynt 1998, 566–67; 2004, 3, 7–8).  
After the lawsuit became publicized that summer, 
local residents let Jaffree know how staunchly they 
resented his efforts.  His attempts to portray those 
efforts as a campaign in defense of minority civil 
rights failed to win him any support among black 
Mobilians, who responded as members, not of a racial 
minority, but of a God-fearing, Christian majority 
jealous of its right to exercise its faith freely (Williams 
2002, 15, 20; Rieff 2001, 192–95).  Nor was 
opposition to Jaffree limited to Mobile.  Alabama 



 

 22 

governor Fob  James, a conservative Democrat who 
strongly supported President Reagan and his 
traditional-values agenda, had always considered 
classroom prayer a legislative priority.  The governor 
capitalized on Jaffree’s lawsuit by declaring his 
support for “those brave schoolteachers” and by 
winning overwhelming passage of a school-prayer 
bill, which featured a short prayer—written by the 
governor’s adult son—for teachers to chant with their 
students.  By the time the trial began in November, 
Ishmael Jaffree was known throughout Alabama as 
the ungrateful God-hater who would use the courts to 
silence children’s prayers (Leviton 1985; Montgomery 
Advertiser 1982a,b, d; Newman 1985a).  
 Foreground at the trial of Jaffree v. Board of 
School Commissioners of Mobile County was a 
political-constitutional argument common among 
1980s conservatives.  The Mobile school board 
denounced Supreme Court “judicial activism” and 
defended the right of local communities and state 
legislatures to establish religious classroom 
procedures.  For its expert witness the board called 
constitutional scholar James McClellan, a writer and 
editor with close ties to the Reagan Justice 
Department and Senate conservatives.  McClellan 
insisted that the school board could not possibly have 
violated the First Amendment’s ban on religious 
establishment because the First Amendment did not 
properly apply to the individual states.  The Framers, 
including the authors of the first and fourteenth 
amendments, never intended to prohibit state 
governments from establishing religions, he informed 
the court.  McClellan defended states’ rights against 
encroachment by the federal government, and he 
defended the lawmaking prerogatives of legislatures—
the people’s elected representatives—against trespass 
by unelected federal judges.  Like other key New 
Right constitutionalists, McClellan believed that 
judicial supremacy over legislatures tended to obstruct 
popular rule.  The Court’s prohibition against religious 
expression in public schools “is undemocratic,” he 
told the court, because it allows “a small, select 
minority” to “impose their view on the people.”  
Democracy demands the right of the people to 
“encourage morality,” and the federal courts have no 
business standing in the way (Jaffree v. Board 1982, 
525–30, 598–600).  

McClellan’s appeal to the right of ordinary 
citizens to enact moral public policies advocated more 
than just a conservative constitutional theory, more 
than simply a diminished jurisdiction for federal 
judges over state religion laws.  McClellan echoed a 
standard Reagan-era refrain: that the cultural elite, the 
“intellectual class,” lacked the moral compass 
necessary for rendering good public policies (Bork 
1990, 7–17, 241–50).  Ordinary citizens, in 
McClellan’s narrative, comprised a kind of moral 
majority and thereby warranted greater political 
influence than they generally enjoyed.  As sources of 

good and decent values, local communities deserved 
control over the public institutions at the center of 
their lives. 

By tying conservative constitutionalism to 
conservative morality, the board enabled its 
codefendants, the intervenors, to expand the trial’s 
focus beyond the Constitution, and even beyond 
classroom prayer.  The intervenors forged past where 
prayer supporters had tread in previous cases.  They 
focused little of their argument on what the 
Constitution did or did not allow.  The intervenors 
aimed to persuade the court that, inevitably, one or 
another fundamental worldview would shape all 
teaching materials and methods.  Any given textbook 
or pedagogical theory, they said, would reflect one or 
another comprehensive morality—one way of parsing 
right from wrong, knowing what was true and what 
was false, deciding how to act and how not to act. The 
intervenors asserted that textbooks and curricula 
necessarily would be religious because particular 
religions  directed all that was said and done in the 
classroom.  And any worldview that ignored God and 
considered human beings the arbiters between right 
and wrong was, they claimed,  as much a “religion” as 
one that acknowledged God as the source and purpose 
for all existence.  The Christian conservatives who 
intervened in Jaffree v. Board defended the 
schoolteachers’ religious rights, not by denying the 
applicability to the states of the First Amendment, but 
by reinterpreting “religion.”  To prohibit Christianity 
was to establish an alternative religion, they 
maintained.  To silence children’s prayers was to 
advance the religion of secular humanism. 

To be sure, the defendant parties emphasized 
different aspects of the New Right critique of 
liberalism.  The school board registered frustration at 
the intervenors’ depiction of the educational 
establishment as anti-Christian (Jaffree v. Board 1982, 
656–57, 680–86, 692–93, 712–16).  Still, the two 
parties ultimately forged complementary arguments 
that conjointly refuted Jaffree’s secularist stance.  
Lawyers for the school board and for the intervenors 
applauded testimony offered by one another’s 
witnesses, with the intervenors citing McClellan’s 
published writings to help make their case (Jaffree v. 
Board 1982, 560–66, 571, 578, 640).  Christian 
antiliberalism was easily enough knotted together with 
constitutional majoritarianism to strangle the 
plaintiff’s hope of eradicating religion from Mobile 
classrooms.  
 The portrayal of the secular classroom as a 
“religious” environment inhospitable to Christian 
values was not new.  The Jaffree intervenors built on a 
profound and sweeping challenge to liberal curricular 
norms, one brewing since the early 1960s, the 
ostensible high point for the liberal, pluralist 
worldview in American culture and politics.  During 
those years the Calvinist cultural critic Rousas John 
Rushdoony posited that the nation’s educational 



 

 23

establishment had been captured by Enlightenment-
based enemies of Christianity.  Education, according 
to Rushdoony, necessarily advanced a single system 
of values—one or another “religion.”  Either biblical 
Christianity or its secular antithesis would always be 
promoted in American schools.  Rushdoony 
contended that, for much of the twentieth century, 
public schools had served as organs for the religion of 
secular humanism, a religion incompatible with 
biblical Christianity.  He considered this situation 
intolerable, and he called on “true” Christians to begin 
changing society, to reassert the dominance of 
Christianity over the human-centered faith established 
by America’s educators (Rushdoony 1961, 1963). 
 Rushdoony’s influence was extraordinary.  
His writings gave rise to a Christian-Right critique of 
liberalism that depicted secular humanism as the ever-
spreading stain needing to be removed from the fabric 
of American education, culture, and law  (McGraw 
1976;  Duncan 1979;  Schaeffer 1981;  Hitchcock 
1982;  LaHaye 1983).   His scholarship also 
influenced televangelists such as Pat Robertson and 
James Kennedy, who frequently hosted Rushdoony on 
their programs.  Perhaps his most significant impact 
was on First Amendment scholar John Whitehead.  
With Rushdoony’s assistance, Whitehead created the 
Rutherford Institute, one of the nation’s foremost 
supporters of evangelical legal actions against the 
public schools (Clapp 1987; Provenzo 1990, 4–11; 
Clarkson 1998).  Whitehead and other pioneers in 
Christian-conservative “cause lawyering” found in 
Rushdoony’s esoteric speculations the ideological 
basis for a new movement: the Christianization of the 
public schools (den Dulk, 2005).  

In his introduction to John Whitehead’s 1977 
book The Separation Illusion, and in a subsequent 
essay, Rushdoony asserted that the authors of the First 
Amendment’s religion clauses had not intended to 
purge public institutions of Christianity, but only to 
protect Christianity from interference by the secular 
state, in order that Christianity—and not the state—
could dominate all of society (Whitehead 1977, 9–10; 
Rushdoony 1978).  Informed and inspired by his 
mentor’s essay, Whitehead drew upon its ideas in a  
highly influential law review article he published 
months later (Whitehead and Conlan, 1978) and in a 
legal brief he submitted for the 1981 Widmar v. 
Vincent case, in which the Supreme Court began to 
revise its longstanding doctrine requiring the 
secularization of public education (454 U.S. 263).  
Through these and other avenues Rushdoony 
immeasurably influenced Christian-conservative 
education reform.  

The New Right attack on public education 
had another important forbear: Texans Mel and 
Norma Gabler, the preeminent critics of textbooks 
used in American schools.  Beginning in 1962, the 
Gablers began organizing opposition and speaking out 
against textbooks that they believed promoted a big 

federal government, downplayed states’ rights, 
ignored America’s Christian foundations, and 
advanced secular humanistic values alien to the 
majority of citizens (Hefley 1976).  The Gablers 
disseminated information widely through Christian 
organizations and helped spark a grassroots movement 
to make public-school textbooks “safe” for Christians.  
Through their long and tireless advocacy, the Gablers 
catalyzed the Christian Right’s push for influence over 
the nation’s public schools (Martin 1982; Provenzo 
1990, 20–24, 32–40). 

Alabama governor Fob James, along with his 
wife and son, subscribed wholeheartedly to that effort.  
From the beginning of his administration in 1980, the 
governor had sought to purge Alabama public schools 
of books that denigrated God, country, or traditional 
Christian values (Mobile Press 1981; Birmingham 
News 1981, 1982; Mobile Register 1982).   Bobbie 
James, the governor’s wife, made it her personal 
priority to protect the place of prayer and “creation 
science” in the classroom (Mobile Press 1981; 
Montgomery Advertiser 1982c).  Speaking to state 
legislators debating her husband’s school prayer bill in 
the summer of 1982, she reminded her audience of the 
“need to acknowledge God as sovereign over our 
public schools,” lest heathen forces continue to 
determine curricular policy (Montgomery Advertiser 
1982b, 2).  Zealotry was a James family affair.  First 
son Fob III, who wrote the governor’s bill and its 
appended prayer, told the House and Senate 
committees that the school-prayer battle was an 
episode in a war between civil and religious authority.  
“Our Supreme Court has allowed a few atheists to 
deprive our people of the God who created them,” the 
governor’s son insisted.  “Unless people have God 
above government, then government is God.”  
Preparing to pass his father’s bill, the Alabama 
legislature stood poised to “confront the Supreme 
Court of the United States” (Montgomery Advertiser 
1982b, 2; Mobile Press 1982). 

After being named in Jaffree’s complaint, 
Gov. James assigned a lawyer from his administration 
to recruit, organize, and represent a group of 
evangelicals to intervene in the Jaffree case.  That 
lawyer, Thomas Kotouc, was affiliated with the 
Rutherford Institute and had long sought to defend the 
“religious freedom” of Christian students.  Kotouc 
partnered up with Bob Sherling, a Mobile lawyer 
driven by similar inclinations (Kotouc 2002, 2–3, 7; 
Smith 2002, 6–7; Mobile Press Register 1982; 
Sherling 2000, 6; Wilkinson 1987, 112).  The two 
devised a legal strategy and advanced an ideological 
vision that built on the arguments of Rushdoony, 
Whitehead, Tim LaHaye, the Gablers, and others.  The 
Jaffree intervenors argued that the real victims of 
religious discrimination were not Ishmael Jaffree’s 
three children but the countless boys and girls forced 
by Mobile public schools to endure and assimilate 
teachings from a religion that violated the core 



 

 24 

precepts of the “traditional” Biblical Christianity that 
their own families lived by.  The Mobile schools—
like all American public schools—had systematically 
promoted the secular-humanist worldview, an 
ideology so coherent and extensive so as to function 
as a religion.  Indeed, the intervenors argued, for 
purposes of the First Amendment, secular humanism 
was a religion.  That it embraced neither God nor 
theology was irrelevant.  According to the intervenors, 
the effect of promoting secular humanism while 
silencing alternative worldviews was so pernicious 
that it rose to the level of religious establishment—a 
clear violation of the letter and spirit of the United 
States Constitution. 

While the plaintiffs and the primary 
defendants called only a few witnesses, the 
intervenors summoned a parade of scholars, preachers, 
and teachers to testify to the secular-humanist 
indoctrination that took place in Mobile schools.  
Employing a strategy popularized by the Gablers 
(Gabler and Gabler 1978), the intervenors called 
witness after witness to examine textbooks used by the 
schools and accused their authors of advancing anti-
Christian beliefs, such as that human beings are 
morally autonomous, responsible for generating their 
own moral values.  First to take the stand was R. J. 
Rushdoony, who reiterated his stock assertion that 
government-run schools indoctrinated children with 
secular-humanist propaganda.  Mobile County, he 
warned, was proselytizing secular humanism with 
great effectiveness.  Like the intervenors’ other expert 
witnesses, Rushdoony charged that the textbooks 
employed by Mobile schools advanced the humanistic 
worldview while they ignored or disparaged the 
Christian worldview.  Two psychology books 
presented the humanistic notion that sex roles were 
culturally learned but not the Christian idea that sex 
roles were assigned by God, he complained; a science 
book explaining evolution made no reference to the 
corresponding Christian account of human origins; a 
short story’s author endorsed moral relativism by 
failing to reproach a character who had lied.  
Especially relevant to the intervenors’ case was 
Rushdoony’s objection to a social-studies book 
proclaiming that “morals are rules made by people.”  
That assertion, in his estimation, blatantly promoted 
the humanistic view that morality has no 
transcendental basis—a religious view in direct 
conflict with the Christian perspective (Jaffree v. 
Board 1982, 344–60). 

Rushdoony charged that the moral relativism 
saturating these schoolbooks derived from a 
pedagogical theory and method known as values 
clarification, which had gained widespread currency 
in the 1960s and 1970s through Values and Teaching, 
a well-known educator’s manual first published in 
1966, and through the work of developmental 
psychologist Lawrence Kohlberg.  Central was the 
theory’s contention that schools must provide children 

with moral education by awakening children to their 
own personal values.  Genuine moral education, 
according to Kohlberg, requires “aiding children to 
take the next step in a direction toward which they are 
already tending, rather than imposing an alien pattern 
on them” (Kohlberg 1967, 300).  To flourish in a 
pluralistic society, citizens must autonomously choose 
the values they will live by.  Raths and his colleagues 
conclude that “if children—or adults, for that matter—
are to develop values, they must develop them out of 
personal choices” that “involve alternatives . . . prized 
by the chooser” and remain “freely available for 
selection” (Raths et al. 1966, 33). 

Critics of secularism in the public schools 
have pointed to values clarification as an egregious 
example of the secular state usurping the inalienable 
right of parents to determine their children’s moral 
development.  According to ethicist Richard A. Baer 
Jr., proponents spuriously present values clarification 
as morally neutral, when, in reality, it casually 
assumes and advances specific moral positions, such 
as “that the individual is free to make value decisions 
in an open and rational manner” and “that each person 
is the final arbiter of moral truth, of what is right and 
wrong, and of what is proper for his own life.”  Baer 
contended that these positions reflected an ethical 
relativism that, although not embraced by most 
Americans, was being widely instilled in children 
(Baer 1977, 1982).  

On the basis of his dire concern, Richard 
Baer made for a compelling witness in Jaffree.  Baer 
informed the court that humanism “functions as a kind 
of religion” that is “contradictory to the basic views of 
Jews and Christians.”  Propagated in textbooks, often 
without competing religious viewpoints, humanism 
serves as a tax-supported national religion.  He 
insisted that humanism’s ethical theory, based on 
radical subjectivity and moral relativity, cannot be 
reconciled with theistic morality—the two religions 
necessarily conflict with one another.  A genuine 
neutrality would require the public schools to present 
both theistic and humanistic worldviews, Baer 
maintained, while, in practice, American schools 
presented only the latter.  In “a pluralistic society” 
such as ours, this was unacceptable.  “If we make the 
kind of judgment that it is improper for children to 
pray in school . . . or to have Bible readings . . . but at 
the same time permit a range of other [practices] that 
are religious in nature,” Baer told the court, “then we 
have a very serious question of evenhandedness.”  He 
charged that liberals had “been so blind to the fact that 
secularism is not religiously neutral that” they had 
“pushed for a very one-sided victory” over theistic 
religion and thereby trammeled over the rights of 
believers (Jaffree v. Board 1982, 783–808).   

Richard Baer’s testimony in Jaffree v. Board 
reiterated the New Right critique of public education 
policy.  The problem, as Baer saw it, wasn’t simply 
that traditionally-religious citizens lacked influence 



 

 25

over textbook selection and policy enactment.  
Equally problematic was the ideology behind those 
textbooks and policies, which, Baer argued, espoused 
a radical subjectivity and moral relativity not only 
alien to most Americans’ values but dangerous to 
society’s foundations.  By asserting “that all things are 
a matter of personal preferences and tastes,” values 
clarification could only portray “freedom, justice, 
democracy, and so on as, finally, matters of personal 
whim and judgment.”  In Baer’s estimation, curricular 
materials informed by values clarification corroded 
the underpinnings of the republic.  They promulgated 
a “religion”—secular humanism—that taught 
individuals to deconstruct their moral compass with 
no sure way to rebuild it.  He charged that “books like 
Values and Teaching” prescribed a “constant 
inculcating of doubt and skepticism [toward] 
traditional approaches to values” and “create[d] a 
mood of doubt in the child . . . towards the kind of 
things that many of us are trying to teach our children 
at home.”   Children’s values, Baer insisted, needed 
carefully to be shaped by traditional morality.  For 
their own and for society’s sake, children needed to be 
given, not constant options, but firm guidance.  Baer 
maintained that the problem with secular humanism 
wasn’t simply that it enjoyed a monopoly in the 
classroom, but that it promoted a flawed and 
dangerous worldview that shouldn’t even be allowed 
in the classroom.  Because values clarification “is 
indoctrination and not education,” he told the court, 
“the method overall should be abandoned in the public 
schools” (Jaffree v. Board 1982, 788–90, 810). 
 The intervenors’ position—that secular 
humanism was a cohesive worldview that corroded 
society’s foundations, offended the majority of 
citizens, and depended on a culturally-elite 
educational establishment for support—found a 
receptive audience in the trial judge.  Mobile native 
Brevard Hand, an appointee of Pres. Nixon in 1971, 
had long favored states’ rights and legislative 
dominance over judiciaries (Reese v. Dallas County 
1973; Clark v. Marengo 1979).  Judge Hand believed 
that federal judges should, whenever possible, avoid 
stifling “democratic” expressions of morality 
contained in state laws.  He believed also that 
democracies needed to inculcate traditional morality 
into their youngest members (Hand 1976; Mobile 
Register 1986).  Honoring what he took to be the 
Founding Fathers’ original intentions, Hand ruled, in 
Jaffree v. Board (554 F.Supp. 1104 [1983], 1118 n 24, 
1127–28), that the First Amendment did not prohibit 
religious exercises in the classroom.  Religious 
minorities had no choice but to endure the indignities 
and inconveniences that went along with marginality.  
He held that the Supreme Court, in its controversial 
decisions prescribing secularism in the classroom, had 
“amended the Constitution to the consternation of the 
republic and . . . . den[ied] to the people their right to 
express themselves.”  At James McClellan’s urging 

(Jaffree v. Board 1982, 556, 603), Hand disregarded 
Supreme Court precedent on school prayer, which he 
dismissed as “wrongly decided.”  His brazen ruling 
would please and inspire conservatives from Senator 
Jesse Helms (Congressional Record 1983) to Attorney 
General Edwin Meese (Meese 1985, 5–6).  Although 
it was overturned on appeal, the ruling echoed a call—
sounded often on the New Right—to limit the power 
of federal courts over public-school policy.  
 Into his decision Hand wove an important 
subtext.  If, in fact, the First Amendment did apply to 
the individual states and did require purging the 
classroom of religious exercises, Hand wrote, then all 
religious exercises must be eliminated.  He promised 
that, in the event his ruling was overturned, he would 
revisit the case and address those issues “raised by the 
evidence produced by the intervenors dealing with 
other religious teachings now conducted in the public 
schools to which no attention has apparently been 
directed and to which objection has been lodged by 
the intervenors.”  Although the school board’s 
constitutional arguments had primarily shaped Hand’s 
opinion, the intervenors had persuaded him that the 
religion of humanism exerted a dangerous impact on 
the schools.  He complained about how case law had 
turned a blind eye to humanism’s inordinate influence.   
The intervenors, Hand determined, had established 
that the “curriculum in the public schools of Mobile 
County is rife with efforts at teaching or encouraging 
secular humanism—all without opposition from any 
other ethic—to such an extent that it becomes a 
brainwashing effort” (1129–30). 
 The Eleventh Circuit did reverse Hand’s 
ruling (Jaffree v. Wallace, 705 F.2d 1526n [1983]), 
and the Supreme Court upheld the reversal (Wallace v. 
Jaffree, 472 U.S. 38 [1985]).  When the case was 
remanded back to Hand, he realigned the parties, 
changing the intervenors into plaintiffs against the 
school board and state.  Smith v. Board, the sequel to 
Jaffree, featured an even longer parade of 
conservatives charging the educational establishment 
with systematically inculcating the religion of secular 
humanism into the nation’s most vulnerable citizens.  
Once again, Judge Hand ruled for the antihumanists.  
“For purposes of the first amendment,” Hand 
declared, “secular humanism is a religious belief 
system, entitled to the protections of, and subject to 
the prohibitions of, the religion clauses.”  Recalling 
the arguments of Richard Baer, he complained not 
only that secular humanism enjoyed a religious 
monopoly in the classroom, but that its content was so 
dangerous so as to threaten children’s—and ultimately 
society’s—wellbeing. “Teaching that moral choices 
are purely personal and can only be based on some 
autonomous, as yet undiscovered and unfulfilled, 
inner self is,” he warned, “a sweeping fundamental 
belief that must not be promoted by the public 
schools” (Smith v. Board, 655 F. Supp. 939 [1987], 
982, 987).  Not surprisingly, Hand was again 



 

 26 

overturned (Smith v. Board, 827 F.2d 684 [1987]).  
But, once again, the judge sounded a ringing 
condemnation of liberal, secular education and the 
judicial principles that enforced it. 
 In Jaffree and its sequel, religious 
conservatives staged a drama long in the making.  
Informed by activism and ideas sketched out over 
several years, a group of Alabamians—including the 
governor, two lawyers, three schoolteachers, and a 
federal judge—performed one of the central actions in 
American politics of the 1980s—the attempt to 
Christianize the public schools.  Events such as the 
Jaffree and Smith trials reveal the contours of the New 
Right’s campaign against secular education, a 
campaign that registered a significant historical shift.  
The impact of that shift only continues to grow with 
time’s passage. 
 

References 
 
Baer, Richard A., Jr.  1977.  Values Clarification as 

Indoctrination.  Educational Forum 41 (January): 
156– 57.  

 ________.  1982.  Parents, Schools, and Values 
Clarification.  Wall Street Journal, 12 April. 

Birmingham News.  1981.  30 April, F2. 
________.  1982.  7 February, A1, A8. 
Bork, Robert H.  1990. The Tempting of America.  

New York: Free Press. 
Clapp, Rodney.  1987.  Democracy as Heresy.  

Christianity Today, 20 February, 17–23. 
Clark v. Marengo.  1979.  469 F.Supp. 1150. 
Clarkson, Frederick.  1998.  Radical Reconstruction.  

In These Times, 8 March, 16. 
Congressional Record.  1983.  129 (98th Cong., 1st 

sess.  Vol. 129, 869–70. 
den Dulk, Kevin R.   2005.  In Legal Culture, but Not 

of It.  Paper delivered at conference on cause 
lawyers and social movements, March, at 
University of California, Los Angeles, March 
2005.  

Detweiler, Fritz.  1999.  Standing on the Premises of 
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