In the Matter of the Petition by

BOARD OF PUBLICATIONS OF THE CHRISTIAN REFORMED CHURCH,
2850 Kalamazoo Avenue, S.E.,
Grand Rapids, Michigan 49508

Denial of Application for Second-Class Mail Privileges for
"BIBLE TRAILS TEACHER'S MANUAL"

P.S. Docket No. 2/101

William A. Duvall Chief Administrative Law Judge

APPEARANCES:
James Engbers, Esq.
Miller, Johnson, Snell & Cummiskey
465 Old Kent Building
Grand Rapids, Michigan 49502
for Petitioner

Cecil Marr, Esq. Law Department
U.S. Postal Service
Washington, D.C. 20260 for Respondent

INITIAL DECISION

On or about July 28, 1972, on behalf of the Board of Publications of the Christian Reformed Church, Grand Rapids, Michigan (Petitioner), an application for second-class mail privileges for the publication "Bible Trails Teacher's Manual" (the publication) was filed with the Grand Rapids Post Office. (Ex. R-2) The issue of the publication submitted with the application was the one which is for use during the first, or Fall, quarter of a two-year Sunday School curriculum for third and fourth grade students. (Ex. P-1)

After a review of the publication, the Manager, Mail Classification Division, Finance Department of the United States Postal Service (Respondent), by letter dated May 1, 1973, advised Petitioner that the application was being denied, subject to Petitioner's right, within fifteen days from Petitioner's receipt of the notice, either (1) to furnish information showing that the requirements of postal laws and regulations relating to second-class mail matter had been met or (2) to file a petition contesting the denial. The reason for the denial was stated as follows:

"Section 132.211, Postal Service Manual, provides that only newspapers and other periodical publications may be entered and mailed as second-class matter. This regulation implements 'old' Title 39, United States Code, section 4351. The provisions of this law are carried forward by section 3 of the Postal Reorganization Act, Public Law 91-375, as implemented by Postal Service Orders 71-9 and 71-10, June 21, 1971. A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature or some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series ... ( Houghton v. Payne , 194 U.S. 88 at 97.) This publication is composed of thirteen individual lessons, composing a quarter of the year's curriculum. Each lesson relates to a different subject, and is complete in itself. This material is more appropriately classified as miscellaneous printed matter of the third-class of mail. The 'Bible Trails Teacher's Manual' is a teacher's manual-workbook; not a periodical. Third-class matter may not be converted into second- class matter by binding together and printing thereon the identification statements which a regular issue of a second-class newspaper or periodical should bear. 'Bible Trails Teacher's Manual' is not considered to be a periodical publication meeting these established criteria within the intent of the postal law and regulation. Therefore, the application for entry to the second-class of mail is denied."

After some correspondence between the parties regarding the inclusion of various items for mailing with the publication, Respondent, on May 22, 1973, again wrote to Petitioner stating, in pertinent part:

"We, therefore, reiterate that the material titled 'Bible Trails Teacher's Manual' is a teacher's manual-workbook, not a newspaper or other periodical publication within the meaning of the law."

A timely appeal was taken by Petitioner by the filing of its petition on June 11, 1973, and the matter came on for hearing on March 26, 1974.

At the hearing the parties agreed that the only issue is whether the publication is a periodical publication within the meaning of postal laws and regulations governing second-class mail. (Tr. 3-4)

The four issues of the publication covering the first year of the curriculum are six by nine inches in size and contain varying numbers of printed pages ranging between 83 and 100 pages. (Ex. P-1 through P-4) The publications for the second year of the program, of which three were offered and received into evidence (Ex. P-5 through P-7), are about eight and one-half inches by eleven inches in size, and contain varying numbers of printed pages ranging from 59 to 64 pages. Most of the issues contain 13 lessons, but an occasional issue contains 14 lessons.

In Exhibit P-9 it is stated that the curriculum for intermediate grades 3 and 4, which is the group for whose teachers the publication is intended to be used, is designed to present the Old Testament in the first year and the New Testament in the second year. (See, also, Tr. 69) While the point is not of great importance, it is with much timorousness and, perhaps, some temerity that I suggest that the reverse is the case - namely, that the lessons in the first year, as indicated by the outside covers of Ex. P-1 through P-4, relate to the New Testament while the lessons in the second year, as so designated on the outside covers of Ex. P-5 through P-7, are based on the Old Testament. Additional bases for this suggestion are (1) the scripture citations near the beginning of each lesson; (2) the subject matter, itself, of the various lessons for each of the two years; and (3) the testimony of Petitioner's witness appearing on page 48 of the transcript of the testimony taken at the hearing.

Regardless of the remarks in the foregoing paragraph, it appears that whatever year or Testament is being studied, there has been rather strict adherence to a plan of presentation of the subject matter in the different lessons throughout the various issues of the publication. At the beginning of each lesson there is the number and title of the lesson. Next, there is the "Memory Lesson from Las Week." There follow the Scripture citations for the current week; a statement of the "Lesson Truth"; and a statement of the "Lesson Aims" which, as the name suggests, indicates the hoped-for effect of the lesson upon the students. All of the foregoing items are very briefly stated and rarely, if ever - even in the smaller sized issues of the publication - require more than one page.

The next item is entitled "Bible Background." This portion of the lesson is prepared in each case by Reverend Andrew Kuyvenhoven, who is the Theological Editor of the Publication and the Director of the Education Department of the Petitioner. This portion of the lesson, usually one to one and one-half pages in length, discusses the historical and theological background of the scripture lesson and serves to set the stage for the lesson by giving some of the atmosphere and flavor of the times in which the various events occurred. It, also, brings these thoughts and events into perspective in relation to the students under instruction.

The "Bible Background" is followed by a listing of materials to be used by both teacher and students, and this listing is followed by a series of specific, but not mandatory, suggestions of steps to be followed by the teacher in conducting the class. The latter subdivision occupies more space, usually from one to three pages, than any other segment of the lessons.

The lesson concludes with a suggestion as to a theme for the closing prayer and a selection of a verse of scripture to be used as the "Memory Work for Next Week."

Now that the publication has been described, attention is turned to the manner in which it is composed. Petitioner called Mr. Robert Rozema, Educational Editor for Petitioner, to testify. Mr. Rozema holds a Bachelor's degree in Education from Calvin College and a Master's degree in Secondary Education from Michigan State University. his testimony relative to the preparation of the publication will now be summarized. (Tr. 43-67)

Rev. Kuyvenhoven and Mr. Rozema prepare lesson plans for a particular issue, which normally consist of such things as the Lesson Truth, Lesson Aims, the scriptural citations and the explanations set forth in "Bible Background." These plans are then sent to one or more of eight authors who respond with 10 or 15 pages of original material based upon the lesson outlines supplied to them. (Ex. P-10) It happened once that one author prepared 90 per cent of the content of an issue of the publication, but the typical issue contains the work product of five authors, in addition to the "Bible Background" which is written by Re. Kuyvenhoven.

The authors' manuscripts are sent to Petitioner's office where they are reviewed, edited and, if necessary, rewritten by one of Petitioner's editors. When this process has been completed, the issue is printed and published. As a rough rule-of-thumb, about 13 percent of each issue is written by Rev. Kuyvenhoven and the remainder is comprised of the contributions of other authors.

The material supplied by the various authors is not a further relating of the events or thoughts which form the basis of each lesson. Rather, this material consists of suggestions to the teacher of steps the teacher may take to bring home the truth or the message of the lesson. One or two examples, chosen at random, will serve to illustrate the nature of the hints to the teacher.

Lesson 7 from the issue of the publication for the second quarter, year 1 (Ex. P-2) is devoted to the story of the Good Samaritan. Typical of the suggestions to the teacher is the following ( id ., p. 48):

"Now, without any further comment, have the children turn in their Bibles to Luke 10:25-37 (story of the Good Samaritan). Let each child read a verse of the story. You might like to illustrate the story with the flannelgraph that is available.

As the story of the Good Samaritan is being read, watch your children closely. Have they caught the connection between the story you told and the parable of the Good Samaritan? If possible, let the class make this discovery for themselves. Then have them point out some of the specific similarities between your story and the biblical account. You might find it necessary to give the children some background about the Samaritans so that they may fully appreciate his kindness."

Lesson 3 from the issue of the publication for the third quarter, year 2 (Ex. P-7) deals with the victory of the Israelites, led by Gideon, over the Midianites. In conjunction with this lesson there is the following suggestion to the teacher ( id ., p. 17):

"Tell the children that they are going to discover how God's people were rescued from this impossible situation. Explain to the class that they'll be working in small 'rescue teams,' using their Bibles to figure out how God rescued Israel. From your Teacher's Kit, take out the four RESCUE TEAM question cards, and distribute one card to each team. Tell the groups that you want them to use their Bibles (Judg. 6 and 7) to answer the questions on their cards. Ask someone in each group to write the group's answers on the card.

You can make this activity considerably easier for your class if you provide modern translations of the Bible for them to use. And, of course, you'll want to be available to help them when questions arise--but try not to give the answers away. Let the students find out as much for themselves as they can.

Should the project turn out to be too difficult for your class, simply tell the story or show a good filmstrip (see introduction of this manual for listings); then discuss the questions with your students."

The foregoing quotations illustrate the nature of the material after it has been supplied by the authors, revised by the editors and published in the publication. The bulk of the publication, therefore, is accurately described as "step by step directions given to the teacher to carry her through, to assist her in teaching a given Bible passage to the class." (Tr. 42)

In the letter of May 1, 1973, the Respondent advised the Petitioner that the revocation action was based upon the decision in Houghton v. Payne , 194 U.S. 88 at 97, and a portion of the Court's definition of a "periodical publication" was quoted. The portion of that quotation which now is of crucial importance is the part that requires that to be eligible for second-class mail privileges a publication must contain "***a variety of original articles by different authors ***".

The term "article" as it is used in the context of this proceeding is defined in Webster's Third New International Dictionary, Unabridged, Copyright 1961, as:

"a generally short nonfictional prose composition usually forming an independent portion of a publication (as a newspaper, magazine or encyclopedia) ***."

The writings of Rev. Kuyvenhoven fall within the above definition of "article." The contributions of the various authors previously referred to, do not meet the requirements of that definition. The "Bible Background" pieces are independent writings in that they tell the story, albeit in abbreviated form, of the lesson and they are capable of being understood when considered by themselves. The instructions or suggestions to the teacher do not meet the necessary criteria because they are not "independent." They relate to the scriptural explanation contained in "Bible Background" or other materials, and some of them would be meaningless if considered alone.

It previously has been determined that the "articles" by Rev. Kuyvenhoven comprise about 13 per cent of each issue of the publication, so that there is a "variety of original articles" in each issue. The difficulty is that these original articles are not by "different authors."

Thus, the dilemma is that the writings supplied by the "different authors" are not "articles", and the "articles" appearing in the publication are not by "different authors".

In addition to the fact that the publication does not consist of original articles by different authors, Respondent contends that the publication does not qualify for second-class entry for the further reason that each issue is complete in itself, and that it therefore lacks a continuity of literary character, as required under Houghton v. Payne . In view of the fact that the publication basically lacks the character of a periodical, I find it unnecessary to determine the merits of the completeness or continuity issue.

Upon the basis of the facts herein found, it is concluded that the publication "Bible Trails Teacher's Manual" is not a "periodical publication" within the meaning of the applicable postal laws and regulations as those laws and regulations have been applied and interpreted over a long period of time.^1/ It follows that the decision of the Respondent as expressed in his aforementioned letter to Petitioner dated May 1, 1973, was correct and it is hereby, although with reluctance, sustained.

In regard to two proceedings involving similar publications of Petitioner, P.S. Docket No. 3/32 (Bible Guide) and P.S. Docket No. 3/33 (Bible Steps) the parties stipulated as follows:

"(1) The initial decision in regard to 'Bible Trails Teacher's Manual' (P.S. Docket No. 2/101) will be controlling in the instant proceeding;

"(2) The agreement of counsel herein referred to does not prevent either party from taking steps on appeal with regard to a final administrative decision; and

"(3) The publication which is the subject of the instant proceeding has held second-class mailing privileges for approximately 18 years, and Petitioner may, if it wishes, include this factor in its argument in favor of continuing second-class mail privileges."

No comment will be made in regard to the foregoing stipulation except as to point number (3). In respect to this phase of the matter, a similar situation was disposed of by the Supreme Court in Houghton , 70-odd years ago. More recently, Courts have held that if a second-class mail permit has been inadvertently or improvidently issued, the Postmaster General has the authority and the duty to correct the mistake. Gilberton World-Wide Publications, Inc. v. Summerfield , U.S.D.C., D.C., (Civ. No. 1373-60, Oct. 20, 1960, unpublished); Dell Publishing Co., Inc. v. Summerfield , 198 F. Supp. 843 (U.S.D.C., D.C., 1961), aff'd. sub nom Dell Publishing Co., Inc. v. Day , 303 F.2d 766 (D.C. Cir., 1962). An administrative decision in which a ruling to the same effect was made is the proceeding involving Shepard's Citations, Inc ., P.S. Docket No. 1/88 (1974).

A copy of this decision will be placed in the files of P.S. Docket Nos. 3/32 and 3/33 involving, respectively, the publications "Bible Guide" and "Bible Steps."

It may be said by some that the ground for the ruling herein is too technical. It is pointed out, however, that the purpose of the definition in Houghton , supra , was to enunciate a rule which would serve as a guide to those involved in the murky reaches of mail classification.^2/ If the application of the rule in some cases seems harsh and strict, nevertheless the application of the rule must be uniform - or as nearly so as is within human capability. Otherwise, those attempting to apply the law and the statutes would reach different results in respect to persons and publishers who are similarly situated, and this method of administration is impermissible.^3/

____________________

1/ Gilberton World-Wide Publications, Inc. , P.O.D. Docket No. 1/158 (1959); same v. Summerfield , U.S.D.C., D.C. (Civ. No. 1373-60); Fizeek Enterprises, Inc. , P.O.D. Docket No. 1/235 (1960); One-Spot Publishers, Inc. , P.O.D. Docket No. 1/231 (1960); Dell Publishing Co., Inc. v. Summerfield , 198 F. Supp. 843 (U.S.D.C., D.C. 1961), aff'd. same v. Day , 303 F.2d 766 (D.C. Cir. 1962); T.V. Reporter, Inc. , P.O.D. Docket Nos. 1/229, 1/273 (1961); Publication Management Corp. , P.O.D. Docket No. 1/280 (1961); R. R. Bowker Company , P.O.D. Docket 2/97 (1964); Publishers Development Corporation , P.O.D. Docket No. 2/247 (1967); American Art Agency, Inc. , P.O.D. Docket No. 2/269 (1968); Zulch & Zulch , P.O.D. Docket No. 3/46 (1970); Phyllis Johnson , P.O.D. Docket No. 3/59 (1971); American Chemical Society , P.O.D. Docket No. 3/90 (1973); Innovations Associates , P.S. Docket No. 2/57 (1973); Essex Editors , P.S. Docket No. 2/52(1973) and Florists' Transworld Delivery Association , P.S. Docket No. 1/167 (1974).

2/ Amended Postal Service Decision, Florists' Transworld Delivery Association , P.S. Docket No. 1/167, dated September 7, 1974, pp. 20-23.

3/ Dixie Highway Express v. United States , 242 F. Supp. 1016 (D.C. Miss., 1965); N.L.R.B. v. Mall Tool Co ., 119 F.2d 700 (CA 7, 1941); IBM v. United States , 343 F.2d 914 (Ct. C1., 1965).