A. The Mozert Litigation
In fall of 1983, the Hawkins County, Tennessee Board of Education (Board) adopted new reading textbooks for use throughout the district.1 Upon reviewing the new readers, a number of fundamentalist Christian parents complained that the textbooks systematically marginalized traditional values and promoted beliefs at odds with their Christian faith.2 When the parents asked that their children be given alternative reading assignments, two of the three schools implicated in the dispute accommodated those requests.3 The Board, however, quickly intervened. Though the schools had reported no difficulty in addressing the parents' concerns,4 the Board strictly forbade any further accommodation.5 Disagreements between the parents and the Board quickly escalated and litigation ensued. The children, in obedience to their parents, refused to read their assignments; the Board suspended those students who remained in the district's schools,6 and the parents finally asked the court to intervene.7 Twenty years ago last summer, after four years of litigation, the Sixth Circuit Court of Appeals rendered a final and unanimous decision against the parents.8 But neither the unanimity of that decision nor the passage of two decades has put to rest the issues raised in that dispute.
The course of litigation in Mozert took a number of surprising turns. Initially, federal District Court Judge Thomas Hull denied the families' motion for a preliminary injunction and dismissed their claims without a trial.9 Finding no coercion on the part of the school district, Judge Hull held that the First Amendment guaranty of free exercise did not protect the students "from exposure to morally offensive value systems or ... to antithetical religious ideas."10
On appeal, the Sixth Circuit found sufficient unresolved issues of fact to preclude summary disposition and remanded the case to the district court for trial." Following an extensive period of discovery and eight days of trial, Judge Hull departed from his earlier decision and accorded the parents a resounding victory.'2 He determined that the plaintiffs' free exercise rights indeed had been burdened. The district's policy had forced them to choose between ceding what they viewed as a core expression of their faith and "forgoing a free public education."13 Judge Hull also found that the state's interest in promoting literacy and educating its young could have been "accomplished by less restrictive means."14 He therefore held that the plaintiffs' free exercise rights were violated, granted the plaintiffs injunctive relief,15 and assessed the school district damages exceeding $50,000. 16
The school district appealed, and the case was heard the following year by a three-judge panel of the Sixth Circuit. In what proved to be the final word on the issues presented, the circuit court reversed Judge Hull's decision and remanded the case "with directions to dismiss the complaint."17 The families immediately petitioned for certiorari from the United States Supreme Court,18 but certiorari was denied. Thus, the case was finally resolved in the district's favor.
Though the final decision by the circuit court was unanimous, all three judges wrote extensive separate opinions. Chief Judge Lively, writing for the court, noted that the students were not compelled to affirm a belief or compelled to do or refrain from doing "any act required or forbidden by [their] religious convictions."19 In the absence of direct coercion, he concluded that the plaintiffs' free exercise rights had not been unconstitutionally burdened.20 Judge Kennedy, writing in concurrence, opined that even if the district's policy had burdened the plaintiffs' free exercise rights, the burden was justified by the state's compelling interest in "[Reaching students about complex and controversial social and moral issues [in preparation for] citizenship and self-government."21
Judges Lively and Kennedy both characterized die burden on the families' religious beliefs as mere "exposure" to ideas witìi which the parents and students happened to disagree. …