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Banned Textbooks : Judge Hand: Activist for the Far Right

March 16, 1987|DAVID TREADWELL | Times Staff Writer

MOBILE, Ala. — 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.

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