"Supreme Court: Enemy of freedom?": Constitutional law in Christian school textbooks

I. Introduction

Discussions of vouchers, precollegiate tuition tax relief, or private scholarship programs, whether carried on by scholars or other commentators, have focused almost exclusively on issues related to the constitutionality of these programs, their efficacy in terms of student achievement, their effect on public education, their potential to stratify or resegregate American education, or some combination of these issues.4 What has been conspicuously absent from the current debate about vouchers and other programs encouraging privatization is any discussion of the curriculum of nonpublic schools. With the exception of a full-length study sponsored by the anti-voucher advocacy organization, Americans for Religious Liberty, in 1993, a 1987 article discussing history materials published and/or distributed by School of Tomorrow, and a series of articles by the author, the issue of what students are taught has not been part of the public and scholarly discussions of privatization.5 Although some of the amicus curiae briefs filed in Jackson raised the issue in relation to the inadequacy of the provision of the Milwaukee law allowing students to opt-out of religious instruction, the authors of the briefs did not look beyond the mission statements of some of the sectarian schools participating in the program. While the curriculum in parochial schools is similar in many respects to that of public schools and, indeed, parochial schools use the same textbooks as public schools, the school curricula of evangelical and fundamentalist Christian schools differ substantially from that used in parochial schools, other sectarian schools, and public pre-collegiate institutions. During the 1980s, three authors examined the culture of Christian schools, including their curricula; however, their discussions of the curricula of these schools are either scattered, or brief, or both, and their consideration of this subject was not tied to the voucher movement of the 1990s.6

A relatively easy way to learn what children are taught is to examine the textbooks they use. Curriculum and instruction scholars have long lamented that school curriculum is, to a large extent, textbook-driven.7 Textbook dependency is even more pronounced in Christian schools, with their emphasis on structure and discouragement of curricular innovation. Indeed, disagreement with and distaste for instructional innovation and a return to the "basics" are part the raison d'etre of the Christian school movement and the involvement of the Christian right in school voucher programs and privatization efforts generally.

Although it is difficult to obtain sales figures from either secular or religious publishers, many Christian schools purchase textbooks and curricular materials from three publishers, A Beka Books, School of Tomorrow (Accelerated Christian Education), and Bob Jones University Press.8 A Beka appears to be the largest publisher of materials used in conservative Christian schools. When contacted, a spokesperson for A Beka Books stated that approximately 9000 schools purchase textbooks from the company.9 A Beka books are also widely used by home schooling families.10 Accelerated Christian Education (ACE) materials, which consist of self-instruction booklets, are also widely used in Christian schools.11 According to Fleming and Hunt, by 1987 ACE materials were being used in 5000 schools.12 Students in ACE schools, working alone and sitting in individual carrels, read the material in the booklets and answer review and test questions. Teachers are not employed in ACE institutions. A monitor maintains order, performs custodial duties, and checks that the students' work has been completed.

Individuals concerned with law and education have a natural interest in what students are taught about the American legal system. Professors of law, education law, and political science together with social studies educators, scholars of social studies education, and attorneys, have an understandable interest in how the legal system and judicial decisions are portrayed in curricular materials used by students. Although they may not be actively involved in law-related education at the pre-collegiate level, all would agree that having a citizenry that is well-educated regarding the role of law in our society is a highly desirable educational goal. The purpose of this article is to examine the view of the law presented to the significant numbers of American students enrolled in Christian schools by analyzing how the textbooks used by significant numbers of Christian school students treat the constitutional jurisprudence of the Supreme Court. Eight textbooks, including five United States history texts, two high school civics texts, and one current events text from A Beka Books and Bob Jones University Press were examined. Eighteen Accelerated Christian Education booklets, including twelve senior high school United States history booklets and six civics/American government booklets published and/or distributed by School of Tomorrow were also examined.13

11. Supreme Court Decisions

The cases discussed in these textbooks can be divided into five groups: historical cases;14 First Amendment cases (twenty-four religion cases, fourteen freedom of speech cases and four freedom of assembly cases); abortion; public school desegregation; and miscellaneous cases, including five criminal law cases, two civil rights cases, two apportionment cases, and several other cases, including Jones v. Clinton15 and Griswold v. Connecticut.16 Not unexpectedly, the civics textbooks included more cases than the American history books and senior high school textbooks included more cases than elementary and junior high school or middle grade books.

The most frequently discussed cases were Brown v. Board of Education17 (discussed or mentioned twelve times and appearing in nine books or booklets), Roe v. Wade18 (discussed or mentioned ten times and appearing in nine books or booklets), Marbury v. Madison19 (discussed or mentioned seven times in seven books), Engel v. Vitale20 (discussed or mentioned seven times and appearing in seven books or booklets), Plessy v. Ferguson21 (discussed or mentioned six times in six books or booklets), and Abington School District v. Schempp22 (discussed or mentioned six times in four books or booklets).23

A. Historical Cases

Historical cases discussed or mentioned in these textbooks include Marbury V. Madison,24 McCulloch v. Maryland,25 Dartmouth College v. New Hampshire,26 Gibbons v. Ogden,27 Dred Scott v. Sandford,28 Plessy v. Ferguson,29 Panama Refining Co. v. Ryan30 (National Industrial Recovery Act an unconstitutional delegation of legislative power to the executive branch), United States v. Butler31 (Agricultural Adjustment Act unconstitutional because "General Welfare" clause merely allows Congress the power to appropriate tax revenue for the general welfare), and Northern Securities v. United States32 (formation of a railroad stock holding company was a violation of the Sherman Antitrust Act). For the most part the discussion of these cases is neutral, although slightly tilted toward a negative view of judicial review and of the federal as opposed to state government. Negative or critical remarks toward these historical cases, when included, are relatively mild when compared to the treatment given other types of cases, e.g. abortion, religion, freedom of speech, death penalty cases, et cetera.

The treatment of Marbury v. Madison emphasizes the facts of the case and the establishment of the principle of judicial review. For example, Bob Jones's senior high school civics book states, "With this decision John Marshall established the principle of judicial review. According to this doctrine the Supreme Court reserves the right to decide whether a law violates the Constitution... Marbury v. Madison marks an important step in the development of American constitutional law and was the first significant exercise of the Supreme Court's most powerful check of [sic] legislative and executive actions."33 A Beka's civics text states that "Marshall gave the Court the right of having the final say in constitutional matters (and) judicial review give the Supreme Court its most effective tool in checking and balancing Congress and the President," but other texts by the same publishers offer negative views of Marbury.34 The A Beka senior high school American history text obliquely criticizes the opinion. "[B]y subtle ingenuity [Chief Justice Marshall] had give the Federalist Supreme Court untold authority as a watchdog over Republican legislation."35 Perhaps more problematic is Bob Jones's current events textbook linking Marbury to judicial activism. The text makes clear its disapproval of judicial activism. "[B]y a free interpretation of the Constitution, sometimes called judicial activism, judges have seized power from the other two branches of government to make policy, or `legislate from the bench.' "36 Students are told that "[g]enerally conservatives favor judicial restraint. . . [because] [o]therwise there is no firm foundation for law."37 Moving on to Marbury itself, the text notes that "[i]ronically, John Marshall, a conservative chief justice ... laid the foundation for judicial activism."38 Jefferson's opposition to the Marbury decision is described. "[H]e considered [it] a direct assault on republican government [that] would permit the rise of a `despotic third branch' of unelected officials who rule for life."39

In A Beka's civics book, McCulloch v. Maryland is described as having "established the doctrine of implied powers" through its interpretation of the necessary and proper clause; however, the authors go on to editorialize that "[s]ince the 19th' century the `necessary and proper' clause has been interpreted more and more loosely by both Court and Congress."40 The corresponding Bob Jones text discusses the Court's reasoning by quoting from the opinion and merely states that McCulloch "reaffirmed" the principle of judicial review and "extended it to the statehouses and city halls of America."41 Gibbons v. Ogden is also linked to the expansion of the powers of the federal government.42

The treatment of Dartmouth College v. Woodward43 more clearly illustrates the tendency to make inferences not clearly supported by the decision itself in order to support a conservative viewpoint. In Dartmouth College the Court held that New Hampshire could not make Dartmouth into a public institution,44 but A Beka's senior high school textbook states: "Marshall maintained that [Dartmouth's] charter was a binding contract with which the state could not tamper. Thus, the Supreme Court ruled that a state does not have the right to interfere with the policies of a private college."45 But, of course, a state does have the right, just as it would with other businesses, to intervene in or regulate a private college or university when its policies conflict with the state's constitution or statutes.

Dred Scott v. Sandford and Plessy v. Ferguson are mentioned or discussed ten times in ten books or booklets. The treatment of these cases is uncritical. In marked contrast to the abortion and Establishment Clause cases discussed infra, none of the textbooks criticizes these decisions and nowhere is there even the slightest hint that the cases were wrongly decided. A Beka's senior high civics text only mentions Dred Scott in connection with one of its discussions of abortion. "[T]he Burger Court held that an unborn child was not a living person but rather the 'property' of the mother (much like slaves were considered the property of their masters in the 1857 case of Dred Scott v. Sandford)."46 Moreover:

Chief Justice Taney found that under the Constitution (1) a slave was not a citizen and could not sue in the courts [and] (2) a slave was the property of his owner and that Congress had no power to deprive a citizen of his property. Thus Taney declared the Missouri Compromise to be unconstitutional, which meant a slave owner could not take his slaves to any part of the United States [end of discussion].47

Bob Jones civics text notes that "[t]he Dred Scott decision overturned the Missouri Compromise and helped set the stage for the bloody confrontation between the North and South."48 The nearest any of these textbooks comes to criticizing the opinion of the Court is to concede that Taney's views were "the most extreme" of the justices when the Chief Justice stated that "the Constitution did not recognize slaves or free blacks as citizens. Blacks, in Taney's words, `had no rights which the white man was bound to respect.' "49

Plessy v. Ferguson is treated in similar fashion, primarily as being overturned by Brown. For example, an ACE civics booklet observes that "the separate but equal doctrine laid down in the 1986 case of Plessy vs. Ferguson was [found] unconstitutional" by the Brown decision.50 Speaking directly of Plessy itself, the A Beka senior high school text states that

[s]ince 1896 race relations in public schools had been governed by the Supreme Court decision in Plessy vs. Ferguson. In that landmark decision the Supreme Court had argued on a close 5 to 4 vote that racial segregation in public places did not violate the U.S. Constitution if 'separate but equal' facilities were maintained for both blacks and whites.51

Bob Jones' civics textbook also gives Plessy a neutral and, it can be argued, the omission of any criticism of Plessy or its results, an almost approving treatment.

The Kansas law [requiring separate schools for white and African-American children] was in keeping with the 1896 Supreme Court ruling in Plessy v. Ferguson. In the Plessy decision the justices upheld segregated facilities since the XIV Amendment providing "equal protection of the laws" for all citizens referred only to legal equality, not social equality.52

Both A Beka and Bob Jones's senior high school American history textbooks briefly mention Panama Refining Co. v. Ryan53 and United States v. Butler.54 The selection of these cases for inclusion is consistent with the generally unfavorable treatment accorded Franklin Roosevelt and the New Deal.55

B. First Amendment Cases

1. Religion Cases

Twenty-three religion cases are discussed or mentioned in forty-nine separate instances. The texts are highly critical of the Court's Establishment Clause jurisprudence. On occasion, the critical tone employed by the authors lapses into open disparagement of the decisions of the Court. For example, the Lemon test is described as a "contrivance."56 "The Lemon test is truly a lemon."57 In addition, the authors ascribe a number of adverse consequences to the decisions, primarily to Engel v. Vitale58 and School District of Abington Township v. Schempp59 (often given combined coverage). Overall, Engel and Schempp are described as having removed prayer from public education. Very rarely do the textbooks qualify such blanket statements by including phrases such as "state-sanctioned." The phrase "teacher led prayers," which is a more accurate portrayal of the reach of these decisions, is not used.60 Fourth graders using A Beka's American history text read that "[t]he Supreme Court ruled that prayer and Bible reading were illegal in public schools [when the Court] ignoring our Christian heritage, interpreted the Constitution in a way that its writers would not have agreed with."61 In a section titled "O'Hair's campaign against God" eighth graders are told that:

In 1962, the Supreme Court removed prayer from public schools, and in 1963 it banned Bible reading from the public schools. These decisions came about largely through the efforts of Madalyn Murray O'Hair, an atheist and Communist who used her teen-age son William, to protest daily Bible reading and prayer in the public schools of Baltimore, Maryland. A liberal Supreme Court ruled that even voluntary Bible reading and prayer were unconstitutional because they discriminated again non-Christians.62

The text goes on to editorialize

The Founding Fathers who wrote the Constitution had great respect for both prayer and God's Word. It was because of our Christian heritage that most schools had included prayer and Bible reading in their daily routines for years. The Supreme Court interpreted the Constitution in a way that its writers would not have agreed with.63

The section concludes with an account of William Murray's conversion to Christianity and his regret for the part he played in the case.64

The senior high school book handles the school prayer and Bible reading cases in much the same way, albeit with even stronger language. For example, the Engel and Schempp plaintiffs are described as "a very vocal and militant minority of atheists and humanists" who were challenging "this public expression [school prayer and Bible reading] of America's faith in the God of her fathers."65 The decisions rendered by the courts in these cases removed all prayer and Bible reading, even on a voluntary basis, from public school classrooms and went a long way toward establishing secular humanism as the national religion.66

Finally, William Murray is described as a person who had been "exploited" by his mother so that she could "press her atheistic ideas on the American public" and who had "lived a pitiful, haunted life [until] he repudiated atheism and Marxism and found faith in God."67 Discussing Engel and the putative misuse of Jefferson's "wall of separation," Bob Jones's current events textbook editorializes that "judicial activists ... have actually made government the enemy of religion."68 In ACE booklets these decisions are attributed to the justices' substituting their "personal values" for the intent of the founders that no single denomination be established as a national church.69 Alluding to Jefferson's Danbury letter, the booklet states, "These men discovered a misleading statement [`separation of church and state'] found in neither the Constitution, the First Amendment, or any other official founding document."70 This is consistent with the view of the Establishment Clause held by many religio-political conservatives that "[b]y our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed on the same equal footing."71 Unlike the A Beka texts, ACE explicitly points out that these decisions only applied to state mandated practices.

However, the booklet argues that a number of dire consequences have flowed from Engel and Schempp, including the decision of the Court in Stone v. Graham.72

As these decisions were applied, however, states, school boards, and courts of appeals interpreted the rulings as directing that prayer, Bible reading, and posting the Commandments were not permitted in schools or in any type of public setting. The result in most communities was the elimination of all three from schools and all public meetings.73

Although some individuals and groups might see Engel and Schempp as having had these consequences, there is simply no evidence that this sweeping generalization is, in fact, true. To the contrary, the Court upheld legislative prayers in Marsh v. Chambers.74

By selective quotation, ACE misrepresents Vidal v. Girard's Executors,75 a nineteenth century case, in which the Court held that a testamentary provision prohibiting the employment of clergy at a school for poor children did not violate state law.76 The booklet quotes from the opinion so that phrases praising the presence of Christianity in education are emphasized while the holding itself is de-emphasized. Another example of a misleading use of quotations occurs when the booklet states, "In 1811 a lower court made the following ruling, which was later cited by the Supreme Court: `Whatever strikes at the root of Christianity tends manifestly to the dissolution of civil government.'"77 The Court may have cited the ruling of this unnamed case, but the language does not appear in any decision.78 Not surprisingly, the Church of the Holy Trinity v. United States79 dictum is included. "The Supreme Court, after describing at length America's religious history, stated: `These and many other matters which might be noticed add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.' "80 The text goes on, "In making this decision the Court cited numerous historical and judicial precedents," thus eliding the use of precedents with dictum.81 The phrasing and visual treatment (it is in large, purple, italic type) implies that the quotation is the holding of the case, but it is not. It is a footnote.

By contrast, Bob Jones's discussions of free exercise issues are, for the most part, more nuanced. The section opens with a discussion of Reynolds v. United States,82 the 1879 case in which the Court held that polygamy was not protected by the Free Exercise Clause and includes a relatively lengthy quotation. Minersville School District v. Gobitis83 and West Virginia Board of Education v. Barnette84 illustrate the "inherent tensions that may arise over an unrestricted interpretation of the free exercise of religion."85 The texts exhibit a degree of ambivalence about the Free Exercise Clause that is in distinct contrast to their approach to the Establishment Clause. This ambivalence is two-fold. First, the Free Exercise Clause raises issues related to compliance to generally applicable laws, which is problematic given the texts' emphasis on obedience. Second, the texts take a somewhat equivocal and occasionally derogatory stance toward the extension of Free Exercise rights to the religious practices of nontraditional religions, including unconventional expressions of Christianity.

The texts, in a somewhat didactic fashion, stress obedience to the law, and the importance of being a law-abiding citizen is strongly linked to religion. "For the Christian, rendering obedience to the state is not an option, but a commandment."86 A long scriptural quotation from First Peter follows this statement.87 "Christians are to obey their government because it is a `minister of God' in this world. The authority principle is established by God."88 But Keesee also states that "[i]f the government attempts to force a Christian to do something that violates a clear Biblical commandment and the believer has exhausted every avenue of appeal, then he must obey the higher authority-- which is God."89

A Beka's civics book resolves this free exercise conundrum by telling its readers that "[the] right to `free exercise of religion,' however, is limited in scope; common standards of decency, law, and order may not be violated under the guise of `freedom of religion' "90 Of course, the difficulty for conservative Protestants and the writers of these textbooks lies in defining "common standards of decency, law, and order." At times it seems as if, from their perspective, religiously motivated conduct that closely resembles conservative Protestantism meets "common standards of decency, law, and order" while the conduct of faith groups that are less traditional or less favored, from an orthodox Protestant perspective, does not. Thus, the A Beka text goes on to frame the inherent difficulty in applying the Free Exercise Clause by stating

[T]he Court has ruled against snake handling [McDaniel v. Paty91] and the use of illegal drugs by those who claim such practices to be an exercise of their religion [Employment Division v. Smith92]. However, the Court will often uphold unusual religious practices. The Court has ruled, for example, that certain groups have the right to salute the flag (or not salute) the flag [Gobitis and Barnette], to sacrifice animals [Church of the Lukumi Babalu Aye v. Hialeah93], or to abstain from work on Sunday because of religious convictions [Sherbert v. Verner].94

What is interesting is the authors' focus on the nature of the religious practices rather than the issue of the degree of government interest in prohibiting the conduct. This approach is also taken by the Bob Jones's civics text. In the teacher's notes that accompany the section on the courts and the First Amendment, the authors suggest that the teacher "might want to discuss the limits of government interference in such controversial modern cases as snake handlers [McDaniel], Indians who use peyote (a banned drug) [Smith], faddish cults that use marijuana, and Christian Scientists who withhold medical treatment from their children. 95Overall, the coverage of Free Exercise Clause cases is less extensive, less internally consistent, less polemic, and more sporadic than that given to Establishment Clause cases.

2. Freedom of Speech Cases

Like the Free Exercises cases, other First Amendment cases are discussed in the civics books and are either absent or relatively rare in the history texts. The civics books discuss a total of sixteen freedom of speech cases. Only two free speech cases, Roth v. United States96 and Schenck v. United States,97 could be found in the United States history textbooks. In the A Beka books more coverage is given to issues related to obscenity and pornography than to free speech cases unrelated to "moral" issues, including Chaplinsky v. New Hampshire98 and Dennis v. United States.99 By contrast, the Bob Jones's text gives considerably more coverage to the development of the Supreme Court's free speech jurisprudence generally, e.g. defamation, disruptive, and seditious speech. Like its approach to Free Exercise jurisprudence, the Bob Jones text includes a somewhat balanced analysis of the issues involved. For example, "A citizen must be free to criticize the government in general or one its officials in particular without fear of having his voice silenced by jail walls. On the other hand, the government has a legitimate role in protecting public order."100 However, Keesee, the author, does appear to be slightly biased in favor of public order and to support the suppression of seditious speech. "The government has a clear right to defend itself against sedition-attempts to undermine its authority and existence."101 Prosecution of individuals under various sedition statutes is either omitted or supported (although Dennis is discussed specifically).

The A Beka text focuses on disruptive speech and shows mild support for the right of the government to restrict disruptive speech by briefly discussing the holdings in Chaplinsky and Dennis. The text closes its consideration of the topic by addressing the issue of flag burning in Texas v. Johnson.102 The authors are critical of the decision because in their opinion the protection for symbolic speech is not "guaranteed in the Constitution."103 They find that "the Court has generally ruled [in recent years] in favor of those who `express themselves with immoral and contemptible behavior.'"104 Both textbooks condemn recent Court decisions upholding free speech when the issue is speech that the authors consider immoral. "These decisions [Cohen v. California, Rosenfield v. New Jersey, and Papish v. Board of Curators are specifically named] have paved the way for the further degradation of speech in public discourse." Even decisions in which the Court has upheld the restrictions on speech are faulted because the Court is a national rather than a local forum for making such determinations. "The national government is simply not as capable of regulating obscenity as are local communities where the family and church are more prominent and have more influence on community standards."105 And again "[t]o move the debate about pornography (obscene writings or pictures designed to arouse immoral thoughts, feelings, and desires) and other obscenities from the local to the national level is to remove it from the area that can best deal with them."106 Setting aside the partial eliding of pornography with obscenity and the apparent disregard of the provision for the application of local standards set out in Miller v. California,107 this passage is entirely consistent with the preference for a state-protective federalism and local control that is a recurring theme in these materials.108 As with the Establishment Clause cases discussed supra and the abortion cases discussed infra, the Bob Jones text's discussion of obscenity and pornography litigation, although scant, is focused on the social ills engendered in the Court's decisions and the failure of police to adequately enforce existing laws.

The easing of restraint through weak laws and sometimes weak enforcement has permitted man more freedom, or more correctly, greater bondage in sin. The results have been a proliferation of the pornography industry and increased moral corruption in lives, homes, and communities. The necessity of restricting obscene, violent, and seditious speech is an obvious result of man's sinfulness.109

The textbooks also touch briefly on the issue of freedom of assembly, primarily in the A Beka civics book. After noting the legitimacy of " `time, place, and manner' " restrictions, the authors state that "laws regulating assembly ... cannot be targeted toward any particular group [and that] [w]hen Forsyth County, Georgia officials sought to charge a fee to a white supremacist group for protesting, the Court sided with the protesters."110 However, almost one third of the section that treats freedom of assembly jurisprudence is a fairly sharply worded polemic against the anti-war protesters of the 1960s. "These activities on the nation's streets and college campuses often included language of the vilest and most offensive variety."111 The convictions of the protesters (described as "young anarchists") "were overturned by higher courts on technicalities, [but] the Founding Fathers would have stood aghast that such words and deeds could be excused."112 The Bob Jones's text ties restrictions on freedom of assembly to "man's tendency to abuse his freedom."113 This view of the inherent depravity of human beings is a fairly common theme throughout the textbooks, especially in their discussions of the rule of law and the relationship of citizens and government.114

C. Abortion Cases

All eight A Beka and Bob Jones textbooks contained references to Roe v. Wade115 and all references were critical of the Court's decision. In addition, one Accelerated Christian Eduacation booklet briefly mentions Roe.

1. A Beka Books

In a section discussing John Kennedy's presidency, fourth graders using A Beka textbooks are told, "The 1960s and 1970s saw many liberal court decisions, including Roe v. Wade (1973), which legalized abortion, the killing of unborn babies."116 Grussendorf, Lowman, and Ashbaugh preface the eighth grade (American history) text's discussion of Roe with the term "liberal."117 "[T]he Supreme Court ruled in favor of abortion, the killing of babies before birth."118 Likewise, in the eleventh grade American history text, the discussion of Roe occurs in a section titled "A liberal Supreme Court."119 The authors describe the Court as ruling in favor of "legalized abortion" which has resulted in "at least 15 million babies [being] murdered" between 1973 and 1983.120 A Beka's American government text attacks the reasoning underlying the decision itself as well as the results of the Court's decision.

Ignoring 3,500 years of Judeo-Christian civilization, religion, morality, and law, the Burger Court held that an unborn child was not a living person but rather the "property" of the mother (much like slaves were considered the property of their masters in the 1857 case of Dred Scott v. Sandford). Hence the Court ruled that the unborn are not entitled to the right of life under the 5th and 14th Amendments. The error of such thinking was obvious. The right of any mother to have the power of life and death over a child is much more than a "right to privacy;" it is a usurpation of God's role in the lives of others, a right that does not reside in the four corners of the Constitution.

The 1973 Roe decision was, and continues to be, a devastating one. As a result of Roe v. Wade, more than 30 million unborn children were killed in abortion mills in the United States alone between 1973 and 1996. More lives have been snuffed out by abortion in America than by all the wars our nation has ever been fought.121

The text returns to the illegitimacy of a constitutional right to privacy in a discussion of the Ninth Amendment. "[S]ome legal scholars want to use the Ninth Amendment to claim a "right to privacy" in order to sanction the immorality propagated by abortionists, homosexuals, and any other group that wants to practice moral deviancy with legal protection.122 The authors go on to argue that "homosexuality and abortion" are without constitutional protection like other conduct that is not specifically addressed in the Constitution. Somewhat pejoratively within the next few lines, the authors cite murder and rape as other examples of conduct unmentioned in the Constitution that prove this point. "Murder and rape are not mentioned in the Constitution either, yet we know that they [like homosexuality and abortion] merit no constitutional protection."123

2. Bob Jones University Press

Eighth graders using Bob Jones's textbooks are introduced to Roe in a short section on the Supreme Court. Roe is given a subsection of its own in this discussion. Like the A Beka texts, this discussion starts by characterizing the decision as "liberal."124

Unfortunately, the conservatives on the court did not have enough power to prevent a liberal decision on abortion. In Roe v. Wade (1973), the court decided that a woman had the right to abort her unborn child within the first three months of pregnancy. Since then, about 1.5 million abortions have been performed each year. This legalized murder destroys nearly one-third of all American babies a year.125

Bob Jones's senior high school United States text positions Roe in a section that discusses "radical" and "extreme" feminists.126 "In the landmark case Roe v. Wade (1973), however, the Supreme Court struck down most state abortion laws. As a result of the Court's decision, the slaughter of unborn children by abortion rose to over one million a year by 1978. Women's liberationists were elated with the decision."127 Like the A Beka books, the strongest language critical of Roe appears in Bob Jones's senior high school civics book and it is the civics book that attacks the legal underpinnings of the decision.

The most shocking example of the Court's social activism was the 1973 decision Roe v. Wade, which legalized abortion. The Roe decision did not start the practice; abortions by the hundreds of thousands were taking place in America before 1973. Rather it placed the stamp of judicial approval upon it and in so doing encouraged and increased the procedure. With 1.6 million abortions performed annually, the grisly operation has become as common as a tonsillectomy, only cheaper. The courts have extended the XIV Amendment right to "life, liberty, and property" to every conceivable group-except the unborn.128

Keesee is as critical of the Court's reasoning as he is of the consequences. "The controversy over the Roe v. Wade decision centers on the Supreme Court's unwarranted extension of constitutional protections at the expense of precedent, state jurisdiction, scientific evidence, and sound moral reason."129 The teacher's notes that accompany this text state that "Roe v. Wade is a shocking example of how Supreme Court activism can support a gross evil in society as abortion."130 Keesee goes on to describe Planned Parenthood v. Ashcroft131 as an "example of chronic irrationality on the subject [of abortion]."132

More general pro-life material appears in this section than any of the other Bob Jones textbooks or the A Beka books, including the statement that "[a]bortion clinics] ... embody the nation's moral decline [and are] a monument to man's failed attempt to achieve the goal of justice."133 A full page highlighted text box titled "Abortion Atrocities" describes in some detail the techniques of curettage, suction curettage, and saline and chemically induced abortions.134 "Sharp curettage involves a knife killing the fetus ... [i] suction curettage, a vacuum pump sucks out the fetus in bits (a knife cleans out any remnants)."135 "[In saline induced abortions] the salt seems to act as a poison; the skin of the fetus, when delivered, resembles skin soaked in acid."136 "The fetus can be in this solution for two hours before its heart (a stubborn bit of `potential life') stops beating."137 The text goes on to discuss the issue of fetal pain. "We infer, and empathize with, the pain of creatures, such as baby seals, which lack language to express pain ... [ellipsis in the original]."138 This material also alludes to Planned Parenthood of Missouri v. Danforth.139 "Planned Parenthood, the most extreme pro-abortion lobby, won a Supreme Court ruling that it is unconstitutional to ban the saline abortion technique. That's right. The court discovered that the 'privacy' right to abortion, which right [sic] the framers of the Constitution neglected to mention, even confers a right to a particular abortion technique."140

3. School of Tomorrow (Accelerated Christian Education)

Although material on abortion generally appears in both United States history and American government booklets, discussion of Roe itself (in a second government text) is relatively short and, in contrast to the A Beka and Bob Jones civics textbooks, mild. "Even more shocking than [the Establishment Clause decisions] was the 1973 Roe v. Wade decision which legalized abortion. Since that date, millions of innocent babies have been killed with the approval of the Supreme Court."141

D. School Desegregation Cases

Only two school desegregation cases, Brown and Swann, (not mentioned by name) are included in the texts although Bob Jones's eighth grade history text alludes to the higher education cases that preceded Brown. Brown, like Roe, is discussed or mentioned in every textbook and in one ACE booklet; however, the coverage of Brown is split between placement in sections dealing with civil rights (primarily in the history textbooks) and discussions of the legal system in the civics texts. For the most part, the treatment is neutral and the absence of indignation or passionate language, common in discussions of abortion or Establishment Clause issues, is noticeable. For example, A Beka's civics book exemplifies both the placement in context (federal power vs. states' "rights") and the dry, factual approach to legal issues.142

In the past, it was not unusual for the Supreme Court to declare a state law unconstitutional, but the Court rarely told the states what they must do. All of this changed after 1955 with the Brown v. Board of Education It143 court case, when Courts began compelling states to desegregate their public schools (Previously, black students and white students had attended separate schools).144

Bob Jones's current events text criticizes the decision as an example of judicial activism, noting that no legal precedents were cited.

While the end was a noble one-ending discrimination in schools-the means were troublesome. The equal protection of the law clause of the Fourteenth Amendment protected an individual's equal right to a fair trial [echoing the Court's reasoning in Plessy]. But the Brown decision questioned not only legal equality but also social equality.145

The text goes on to state that "[l]iberals were not willing to wait for a political solution."146 The authors of two A Beka history texts make clear their disapproval of court-ordered busing. "One very controversial way to end segregation in the schools involved court-ordered busing of students from one school district to another."147 The same language appears in the publisher's senior high textbook and, as with Brown itself, the busing decisions of the Court are linked to the issue of Federalism. "Parents of all races and ethnic groups were upset that their children no longer attended neighborhood schools. Local school districts became increasingly dependent on money grants controlled by administrative agencies based in Washington, D.C. Any objections to federal policies were often overruled by the need for federal funds."148

E. Miscellaneous Cases

As previously stated, these cases include those related to criminal law (five cases) and other issues (Federalism, voting rights, civil litigation brought against a sitting president, birth control, gun free school zones, and firearms). Unlike the historical cases, no clear pattern of coverage emerges. The A Beka civics textbook discusses six of these twelve cases while Bob Jones civics text discusses seven. Discussions of these cases are scattered throughout the history books for both A Beka and Bob Jones University Press.

The A Beka texts focus on death penalty cases, while Bob Jones's books also include non-death penalty criminal law issues (Miranda warnings, right to assistance of counsel, exclusion of illegally obtained evidence). The A Beka civics book merely gives the holdings of Furman v. Georgia149 and Gregg v. Georgia150 (although not the bases on which the Court reached its decisions), asserts that the Eighth Amendment does not prohibit the death penalty, and ties the Eighth Amendment to scripture. "This amendment follows the Biblical principle that the penalty or the punishment for a crime should match the severity of the crime."151 By contrast, the publisher's United States history books ascribe the rise in crime subsequent to 1972 to the Court's decision in Furman and tying the decision to "several liberal decisions ... indicating the moral decline of the nation as a whole."152 The publisher's senior high school texts uses the same language.153 The Bob Jones's civics book is more factual in its approach to the death penalty cases, noting that the Court found that "all state death penalty statutes were too vague and too inconsistently applied."154 However, a highlighted text box on the facing page instructs students in "What ... the Bible Say[s] About Capital Punishment."155 This material quotes scripture (" `Whosoever sheddest a man's blood, by man shall his blood be shed . . .' ") and opines "[t]hat Scripture is clear that God still expects government exercise appropriate use of the death penalty"156 and that "[t]he sword . . . is an instrument of punishment which God requires the state to wield for the cause of justice; and for bloody men who take life, the death penalty is just."157 The Bob Jones's texts also address the major defendant's rights cases of the era, Gideon v. Wainwright,158 Miranda v. Arizona,159 and Mapp v. Ohio.160 In the senior high school American history text, Gideon is presented in a fairly straightforward fashion, but the authors include the following statements at the end of the material dealing with Miranda.

[R]igid requirements [such] as the Miranda rule have sometimes prevented police from keeping criminals off the street, when technical violations of their rights occurred. Crimes from murder to drunk driving have been dismissed in the face of overwhelming evidence because of rights violation. Such incidents reveal a warped sense of priority on the part of the courts-when rights are placed above justice.161

Overall, the texts are strongly supportive of states' "rights."162 The A Beka civics text describes federal intrusions into matters the authors consider the proper prerogative of the states as "coercive federalism."163 The Supreme Court is described as "having coerced the states into submission" through the incorporation of the Due Process Clause of the Fourteenth Amendment.164 The discussion of Garcia v. San Antonio Metropolitan Authority165 (1985) is placed in a section titled "Gutting the 10`'' Amendment."166 The discussion of the apportionment cases also emphasizes the issue of state autonomy and portrays these decisions as wrongly decided and having negative results. The holding in Reynolds v. Sims167 (1964) is criticized because "[t]he Court insisted upon [the] argument [based on the equal protection clause of the Fourteenth Amendment] in spite of the fact that the same Constitution which guarantees equal protection under the law also establishes a Congress of the United States with one house (the Senate) based solely upon geographical boundaries (state boundaries) without regard for population."168 The results of the case are described as having "intimidated ... the states."169 Because of this intimidation, "the states fell into line."170 The Bob Jones history text takes a similar, albeit more subtle, view of the apportionment cases. Reynolds is not named but is described as a "typical case of judicial activism." 171 After quoting Harlan's dissent, the authors editorialize that "unfortunately, the majority of Harlan's associates did not listen to him."172 The authors of the A Beka text see "a glimmer of hope" with the Court's overturning of the Gun Free School Zone Act in United States v. Lopez. By its decision the Court "banned Congress from policing local school zones."173 The authors do not discuss the subject of the Act itself.

III. Conclusion

One of the overarching characteristics of textbooks used in Christian schools is the juxtaposition of factual and editorial material. The selection and treatment of Supreme Court cases and constitutional law issues exhibits this pedagogical approach. Many cases appear to be selected to support a conservative religion-political viewpoint rather than teach about the law. However, because the subject matter of the cases also reflects major issues in American constitutional jurisprudence, the mere inclusion of cases is not, by itself, sufficient to support the assertion that the coverage reflects an intentional use of the texts to persuade, rather than inform. The amount of coverage given to the selected cases must also be considered. Here some simple comparisons are instructive. The only two cases that are included in each of the eight textbooks and at least one School of Tomorrow booklet are Brown v. Board of Education and Roe v. Wade. Twenty-three religion cases are discussed or mentioned 59 times, whereas the two desegregation cases Brown and Swann v. Charlotte-- Mecklenburg Board of Education are discussed or mentioned fourteen times, and nine historical cases are discussed thirty-nine times. Thus, the number of religion cases is more than double the number of cases related to civil rights and cases of historical importance, and the religion cases are more likely to be discussed or mentioned than cases in both of these categories combined.

Selection and coverage alone cannot convey the persuasive character of the books' approach to constitutional law. Indeed, a neutral presentation could be based on these cases if the treatment attempted to convey the balanced discussion of the issues involved. How the cases are presented is crucial to understanding the view of the Constitution and the judicial system that these texts present. To inculcate a particular set of religio-political values, the authors exhibit both explicit and implicit bias. First, they use slanted language to subtly or sharply disparage the reasoning of the Court when they disagree with a particular decision. For example, Bob Jones's civics book employs sarcasm when describing the citation of Griswold in Roe as "[t]he so called right to privacy which had been recently 'discovered' "174 Second, the authors structure their discussions of cases and their associated legal issues to shape student's beliefs and perception. They use three methods to attempt to influence student thinking. First, the authors fail to present both sides of the legal arguments. This omission is most noticeable when the coverage of the issue is extensive and the issue is one that is of concern to religio-political conservatives, e.g. abortion or school prayer. They also fail to include the reasoning of the Court in reaching its decision. Second, the authors focus on what they consider negative social results that flowed from the decision. Expository material describing the social consequences of Supreme Court decisions is only included when the case deals with a conservative issue of concern. Thus, the consequences of Plessy are not described, while those of Roe are addressed in every textbook. Third, they include editorial comments to reinforce the conservative ideology presented. Again, this only occurs when the case deals with an issue about which conservatives have strong opinions. Fourth, the inclusion of quotations from dissenting opinions also follows this pattern. On some occasions, a quote from a majority opinion is balanced by a quote from a dissenting opinion. In other instances, a holding statement is given together with a quote from a dissent. However, the decision to include quotations from dissenting opinions appears to be made, not for its efficacy in illustrating how lawyers and judges can disagree over a legal point, but rather for its ideological value.

One of the most deeply cherished values in American society, and indeed in any society that considers itself to be free, is the right to rear one's children free from state interference, and this right cannot be separated from the right to communicate the beliefs of the parents to their children. In Pierce v. Society of Sisters,175 the Supreme Court upheld the right of parents to delegate that right to others.176 All education is balanced between exposing the student to the marketplace of ideas and inculcating the student in values of a particular group, whether that group consists of the family, the community, or the nation as a whole. And this balance differs according to the level of education. In higher education, the mission of public institutions and, to varying degrees, private institutions, is to foster independence of thought by maximizing the exposure of the student to the marketplace of ideas and to a diversity of viewpoints. Inculcation in a particular set of values is minimized. In pre-collegiate education, the formation of a socially acceptable belief system assumes a greater prominence in the curriculum and the inculcation of community values is fairly strongly supported by the courts.

Although parents have the right to select schools that use the curricular materials described in this article, that fact does not mean that the wisdom of encouraging parents to choose ideologically driven education cannot be debated. Nor does it mean that the implications of large numbers of parents choosing this type of education for their children should be ignored. Parents who choose conservative Protestant education for their children believe that public education is also ideologically driven and that the ideology which underlies public education is not only wrong but also detrimental to both their children's and the nation's well-being. What policy makers and, at some juncture, the public at large, must confront is the question of whether the exposure of school children to these materials might also be detrimental to the American legal system and to the polity as a whole. Certainly, the unremitting exposure (preschool through college) of young people to this type of education raises a number of important questions. For example, would students whose educational experience was limited to the textbooks described in this article be more or less susceptible to manipulation by groups and individuals who base their arguments on persuasive materials? Would such students be more or less likely as adults to fully, honestly, and thoughtfully consider all sides of an issue when reaching a decision, whether it be in a court of law or in the political arena? In short, how open would they be to opposing viewpoints that sustain a robust and healthy democracy?

Having come to some determination of the possible consequences of having increasing numbers of American youth receive an education that is driven by conservative ideology, policy makers and the public must confront two issues. First and most radically, is it in the best interests of the nation to permit this type of education, through lack of state regulation of private schools, or to encourage it by awarding tax exempt status for schools whose curricula are contrary to public policy? 177 Flowing from that question is the necessity for balancing parents' rights against the interests of society through state regulation of nonpublic education and home schooling. Second, is it proper or wise to subsidize this type of education with public funds, either directly, e.g. with vouchers, or indirectly with tuition tax credits or tax advantaged scholarship programs?