Judge W. Brevard Hand, Intellectual Historian

United States federal judge W. Brevard Hand (1924-2008) was one of the more important conservative intellectuals of the culture wars. And yet his significance is rarely recognized. His opinion in the infamous “Alabama Textbook Case” (1987)—published as American Education on Trial: Is Secular Humanism a Religion?, with an introduction by Richard John Neuhaus—is the work of a creative and far-reaching conservative intellectual. In fact, it reads like an intellectual history of secular humanism.

In Age of Fracture, Daniel Rodgers briefly discusses the obstreperous Hand in the context of his discussion of constitutional originalism, part of his “wrinkles in time” chapter. Hand, as Rodgers writes, “set out to show that history proved the Supreme Court wrong” on its rulings on religion in school. As such, he made arguments from his Alabama bench in the early 1980s that served as an important precursor to the originalist movement, particularly in his disagreement with incorporation, a process by which portions of the Bill of Rights were applied at the state level. Among other revolutionary legal transformations, the precedent set by incorporation led to the 1962 Engel v. Vitale landmark decision that ruled school prayer violated the First Amendment. In contrast, based on a properly originalist understanding of the Constitution, Hand declared that states were not bound by the First Amendment and, as such, that Alabamans were free to establish religious practices of their choosing.

Hand’s early originalism proved influential, especially to Edwin Meese, Reagan’s attorney general, who made it the cornerstone of how the Reagan administration would deal with religious freedom issues. The Reagan administration openly pushed for prayer in public schools following this logic. Hand’s interpretation also influenced future Supreme Court Justice Antonin Scalia, among others. But Hand’s creative conservative jurisprudence did not end there. For in the 1983 case where he made his name as an originalist—Wallace v. Jaffree—Hand anticipated that the Supreme Court would reject his logic regarding incorporation. Thus, he helped the defendants in that case, those associated with the Alabama law that set aside one minute in the school day for school prayer or the equivalent in quiet contemplation, construct an alternative legal rationale for their actions. If it was determined that the Alabama law violated the First Amendment “establishment clause,” via incorporation, then Hand and the defendants-cum-plaintiffs sought to make their case by going through the “no establishment” provision. In other words, Hand sought to use the incorporation precedent against itself by making the case that “secular humanism” was a religion, and furthermore, that it was the established religion of the public schools, and thus, that it violated the religious freedom of Christians. This is an example of how conservative Christians often made use of multicultural “rights” language to advance their causes during the culture wars.

The “Alabama Textbook Case” (Smith v. Board of School Commissioners) (1987), then, was an attempt by Judge Hand and the plaintiffs, comprised of several hundred Alabama citizens, including teachers, to prove that secular humanism was the operant religion of the public schools by way of a close reading of textbooks. As Hand wrote: “What this case is about, is the allegedly improper promotion of certain religious beliefs, thus violating the constitutional prohibitions against the establishment of religion, applicable to the states through the Fourteenth Amendment.” The Neuhaus introduction nicely sets the stage for the nearly-100-page opinion that followed. Neuhaus argued that what Hand’s interlocutions proved was that “the law with respect to religion and public education is in a terrible jumble,” which is hardly controversial no matter your dog in this fight. In his book The Myth of American Religious Freedom, David Sehat makes a similar point from a very different perspective. He contends that the liberal mid-twentieth-century Supreme Court that overturned the moral establishment based its decisions on bad history, which encouraged dissent. “By underselling the liberalizing rationale for their decisions,” Sehat explains, “the Court created a damaging uncertainty as to its purpose in taking on these cases.” Furthermore: “In not acknowledging past religious power and not explaining that that power had led to an unfair exclusion or coercion of individuals, the Court left obscure the reason that it felt compelled to act in the first place, which in turn allowed conservatives to press their claims without acknowledging their desire for a return to coercion.”

Neuhaus also analyzes the work and influence of John Dewey in ways that I do in my book, Education and the Cold War, though, as with Sehat, I come from a very different vantage point from Neuhaus. In seeking to concur with Hand that secular humanism was indeed a religion, Neuhaus pointed to the influence of John Dewey, who was open and honest about his secular humanist position. “The main defendant, be it understood, is the venerable John Dewey.” More: “Dewey lives on, so to speak, in the establishment philosophy of government education today.” And more still: “If fish could write a report on their environment, probably the last thing they would notice is the water. Dewey is the philosophical water within which government education swims.” And yet again, more: “Dewey was both wiser and more candid than much of today’s public educational establishment. He made no bones about the fact that education required religion and, in his view, the religion required is the religion of humanism. I say he is wiser because, with educators from Aristotle through Secretary of Education William Bennett, he knew that education has most essentially to do with paideia, with the transmission and nurturing of truths by which a community would live. A new religion was needed, he believed, and he called it the religion of humanism.” This gets at the point I was trying to make in my previous posts on secular humanism and the teaching of evolution: teachers should not hide behind professionalism and pretend their pedagogies don’t challenge fundamentalist Christianity, or even, ideally, capitalism.

This then leads me to the intellectual history of secular humanism provided by Hand in his opinion, which was, in essence, an attempt to refute the notion that education should operate in a bias-free vacuum of professionalism—put on display in the trial by John Tyson, Vice-President of the Alabama State Board of Education, as paraphrased by Hand: “values are not something that he thinks should be taught in the schools, but should be taught at home and in the churches. ‘What you go to the public schools for is to be educated to learn how to read and write.’” Instead of this, Hand interpreted the thought of several key people who gave testimony. One such person was Glennelle Halpin, a professor of educational psychology at Auburn who gave a lengthy testimony summarizing the major philosophies that informed educational theory, from behaviorism to humanist psychology. She was a proponent of values clarification, a pedagogical method that conservatives pointed to as representative of the hyper-relativism that informed public school curriculum, though Halpin said it was often misunderstood. Hand summed up her thought process on this: “Dr. Halpin says that the school does not have the right to teach a value system that is different from the parent, but the content of the curriculum in the school is not necessarily based on a survey of the value systems of the parents, so when the teacher does instruct she may well match or mismatch, deliberately, the information about values that has been presented to that child.”

As counter to Halpin’s insider view, Hand relied upon the testimony of famed conservative intellectual Russell Kirk, whose traditionalism informed his many writings on education. Based on Kirk’s analysis, Hand presented a brief but compelling overview of secular humanism’s etymology. The term emerged in the twentieth century, used by humanists in the Dewey vein to separate themselves from new humanists Irving Babbitt and Paul Elmer More. For Kirk, as for Babbitt and More, this was the distinction between humanism and “humanitarianism,” the latter being a sickly form of relativism. On whether secular humanism is a religion, Kirk argued that it indeed was, based on the fact that it had a set of documents which formed a creed—the Humanist Manifestos—and because it tended to make immanent “symbols of transcendence.” As Christians claimed “that one enters upon immortality through perfection in grace in death,” secular humanists made immanent “the perfection of society here in this world.” “The equivalent of death to the secularists is passing through a form of revolution to a new order of a perfect kind. The role model for this secularist thinking, Dr. Kirk says, is the Marxist theory: revolution and then eternal changelessness here on earth, a condition of perfect equality.”

My musings here only briefly touch upon the intellectual history of secular humanism synthesized by Judge Hand in the “Alabama Textbook Case.” My argument is neither that this is necessarily good intellectual history, nor that Hand made compelling legal or political arguments (all of which, luckily, were shot down by higher courts). Rather, I find it fascinating that Hand’s opinion reads more like intellectual history. And I maintain that the conservative critique of secular humanism points to some of the weaknesses inherent to the professional cloak worn by contemporary progressive educators and proponents of multiculturalism.