Banned Textbooks : Judge Hand: Activist for the Far Right

When Judge W. Brevard Hand was about to rule on a controversial Alabama school textbook case recently, the question was not which way his decision would go--but how far.

To the surprise of no one familiar with the case, Hand went the distance: He upheld the fundamentalist Christian plaintiffs, declared that “secular humanism” is a religion and banned more than 40 state-approved books that he ruled promoted the godless doctrine.

The 63-year-old U.S. District Court judge, a former corporate lawyer appointed to the federal bench in 1971 by former President Richard M. Nixon, has become a leading activist judge for the far right. A deeply religious man and a passionate scholar of the strict interpretationist school of constitutional law, he seldom leaves any doubt about his staunchly conservative sympathies and often iconoclastic approach to jurisprudence.

He virtually created the school textbook case himself, taking the unusual step of making plaintiffs out of the more than 600 defendants in a school prayer suit in which his decision was overturned by the U.S. Supreme Court in 1985.

Hand had upheld Alabama’s school prayer law, asserting that the U.S. Constitution does not prohibit the individual states from establishing religion. He contended that decades of Supreme Court decisions against state-sponsored prayer were rooted in a misreading of history.

But aware of the idiosyncratic nature of his viewpoint, he also had reserved the right, if overturned, to reopen the case--this time with secular humanism, not prayer, as the central issue.

A Modest, Retiring Man

“If this court is compelled to purge ‘God is great, God is good, we thank him for our daily food’ from the classroom,” Hand reasoned, “then this court must also purge from the classroom those things that serve to teach that salvation is through one’s self rather than through a deity.”

His March 4 ruling in the textbook case has thrust the courtly, silver-haired jurist--a modest, retiring man in private--into the center of a national controversy. Critics liken his ruling to “judicial book-burning” and “government censorship of the school curriculum.”

“If any liberal judge had done anything like this during the civil rights movement days, he would have been impeached by Congress,” said a civil rights lawyer in Montgomery, Alabama’s capital, who asked to remain unidentified.

The religious right, on the other hand, hails Hand as a hero. “For the first time, a United States court has recognized on the merits that humanism is a religion,” said Robert Skolrood, director of the National Legal Foundation, a fundamentalist Christian lobby founded by television evangelist and potential presidential candidate Pat Robertson.

‘He Cannot Duck’

“As a religion, humanism will no longer be granted a preferred position in American education but must be treated with strict neutrality. . . .”

Controversy is nothing new to Hand, a Mobile native and son of a prominent local lawyer, who declined to be interviewed for this article. At his swearing-in ceremony 16 years ago, when school desegregation and civil rights battles raged in Alabama, an appellate court judge said: “Judge Hand will stand on one of the hottest firing lines in the nation. He cannot duck or flinch.”

By the accounts of admirers and detractors alike, Hand has met that challenge. Both sides give him high marks for running an efficient and competent court and for facing issues head on.

Hand’s critics say, however, that as a result of legal zealousness he has one of the highest reversal rates in the federal court system. “Whenever you try a case with Judge Hand, you always know that you have a pretty good chance of an error in the record that makes his decisions appealable,” said a Mobile attorney who requested anonymity.

Admirers and detractors also differ in how they regard his judicial philosophy.

On Side of Law and Order

“To anyone who could be considered open-minded, forward-looking or progressive, Judge Hand is controversial,” said James Byrd, a Mobile criminal defense attorney who has often practiced before Hand, the Mobile District Court’s senior judge. “But to anyone with the good ol’ boy mentality of the Old South, he’s a good judge. He’s pro-authority, pro-police and on the side of law and order.”

Civil rights lawyers, in particular, dread arguing cases before him. They complain that he is often openly contemptuous of them in his courtroom.

Last year, he came under fire for allegedly referring privately to a white Mobile attorney as “a disgrace to his race” for representing civil rights litigants.

Nomination Unopposed

Despite the controversy that has surrounded his tenure, Hand aroused little public attention when he was selected for the federal bench 26 years ago. His nomination was considered routine and sailed unopposed through a nomination hearing by the Senate Judiciary Committee on Sept. 21, 1971. He was confirmed later that day by the full Senate.

He was 47 years old when he was sworn in on the following Oct. 1. At his investiture ceremony, he told the assembled dignitaries and guests: “It shall be my purpose to so conduct the affairs of this office that, when I put down its mantle, you will be confident that it has not been abused.”

For all the debate he has since stirred, however, there is little question that Hand reflects the prevailing temper of this region of Alabama.

The ever-expanding suburbs and beach resorts around Mobile are affluent and almost solidly Republican. Mobile itself, once a colorful, devil-may-care Creole port town, is now a gritty industrial city of 210,000 that identifies more with businessmen and entrepreneurs than with its working-class citizens and impoverished blacks.

Fundamentalism Dominant

Ever since the influx of thousands of rural Alabamians to Mobile during World War II, Christian fundamentalism has replaced Roman Catholicism as the dominant religion.

In a speech to a Mobile church group two years ago, Hand left no question as to his religious views. As a boy growing up in Mobile during the Great Depression, he said: “I was never permitted the luxury of not being in Sunday School on Sunday mornings.”

Moreover, he added, his faith had been strengthened when he survived a brush with death while serving as a soldier in Europe during World War II. “I had no reason to be alive,” he said, “so I knew there was still something left for me to do.”

Jack Edwards, who represented Mobile’s 1st Congressional District for 20 years and nominated Hand for the federal bench, says of Hand: “Nobody in this town in the legal profession would suggest anything but that Judge Hand was a highly skilled lawyer who is now a highly competent judge.

‘Reputation Is Excellent’

“I recall humorously saying back in the days when he was appointed--and federal judges were not so popular around here--that my remarks in support of him would probably be the last good thing I’d say about him. But I’ve never had any regrets about nominating him and don’t have any today. His reputation here is excellent.”

Edwards, who has been a partner in Hand’s old law firm for the last two years, admits that he has reservations about the judge’s textbook decision, however.

“I’m nervous, as I think many people are, when someone says books should be pulled from shelves. That’s a natural reaction,” he said. “But you have to understand that a person can disagree with a decision without thinking that the person who wrote it is any less competent as a judge.”

Last Thursday, the Alabama state Board of Education voted 5 to 4 to appeal Hand’s ruling. Board Vice President John Tyson Jr. of Mobile, who cast his ballot with the majority, said the ruling will throw Alabama’s educational system into chaos if it is not appealed.

Others Join in Appeal

The next day, the American Civil Liberties Union, People for the American Way and lawyers for 12 parents of Alabama schoolchildren said they would join the board in its appeal. People for the American Way is a liberal lobby founded by television producer Norman Lear that monitors censorship complaints nationwide. With the ACLU, it supplied legal counsel and expenses for the defendants.

School officials in Mobile County have already taken the banned books off shelves and out of the hands of students. Robert Campbell, the attorney for the Mobile County School Board, said the books were removed immediately because federal marshals served Hand’s injunction just hours after the ruling was handed down. Other school districts in the state are waiting on guidance from state officials before acting on the judge’s order.

A total of 45 books, covering the fields of home economics, history and social studies, were included in the judge’s ban. Many are in common use in classrooms across the nation.

Situational Ethics

The plaintiffs defined secular humanism as a religion that places man, not God, at the center of existence and advocates situational ethics and morals instead of absolute values. Among the passages they cited as promoting those values were these:

“You are the most important person in your life,” “As you mature, you discover that right and wrong are not well defined as they were when you were a child,” and “Standards are a personal decision and will vary with each person.”

Hand ruled that such teachings violate the constitutionally mandated prohibition against state-sponsored religion.

One measure of the activist nature of Hand’s involvement in the textbook case was his appointment of Russell Kirk, a conservative author, as a supposedly neutral expert witness on secular humanism.

But, as defense attorneys contend, Kirk could hardly be considered unbiased. He was editor of “The Assault on Religion,” a book published in 1986 by the conservative Center for Judicial Studies. The dedication of the book is to “Judge W. Brevard Hand, defender of the Constitution and religious liberty.” One of the chapters also effusively praises his school prayer ruling.

Judge’s Reversal Rate

In favor of any challenge to Hand’s decision would be the judge’s reversal rate at the appeals court level. In a case of great importance to blacks in Alabama’s “Black Belt,” for example, the U.S. 11th Circuit Court of Appeals in Atlanta ruled in 1984 that Hand had erred when he decided the at-large voting system and racial polarization in Dallas County did not dilute black voting strength.

Dallas County, whose seat of government is the city of Selma, site of a bloody civil rights demonstration more than two decades ago, is 55% black but has not had a black member on the county commission in this century. In his ruling, Hand attributed the failure of blacks to win county office to black voter apathy.

Decision in Jeopardy?

Among those who believe Hand’s decision in the textbook case stands a better-than-average chance of being overturned on appeal is Ishmael Jaffree, a black Mobile attorney and avowed agnostic who filed the lawsuit against Alabama’s school prayer law on which Hand ruled four years ago and was later reversed.

“All this textbooks case is Judge Hand’s way of saying to the Supreme Court, ‘OK, if you don’t want religion in the public schools, I’m going to show you how far I can take this,”’ Jaffree said. “But if it gets to the Supreme Court, they’re just going to do exactly what they did in the school prayer case.”

Hand’s supporters, however, are equally convinced that his decision is unshakeable.

“It’s based upon Supreme Court precedent prohibiting the advancement of religion in schools,” said Thomas F. Parker IV, a Montgomery attorney who represented the plaintiffs in the textbook case.