Posted on by Mark Movsesian

Yesterday’s High School Graduation Ruling: Three Quick Observations

As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Read more

Posted on by Mark Movsesian

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Posted on by Mark Movsesian

Tennessee Governor to Veto Vanderbilt Bill

Tennessee Governor Bill Haslam has announced that he will veto the bill, discussed here, that would ban “all-comers” policies, such as the one at Vanderbilt University, that require student groups to open their leaderships to all students, including students who reject the groups’ core beliefs. Although he disapproves such policies, Haslam said, he thinks it’s “inappropriate for government to mandate the policies of a private institution.”

Posted on by Mark Movsesian

State Legislature Moves Against Vanderbilt’s “All-Comers” Policy for Student Groups

Last night, by comfortable margins, the Tennessee legislature passed a bill prohibiting Vanderbilt University’s “all-comers” policy for student groups. The policy, which requires that student groups open leadership positions to all Vanderbilt students, even students who disagree with the groups’ core beliefs, has sparked a dispute between the university and some student religious organizations, which argue that the policy effectively dilutes their religious identity. The bill initially banned all-comers policies only at state universities, but an amendment extended the bill’s  coverage to private institutions that receive more than $24 million in state subsidies — which just happens to be the amount Tennessee gives Vanderbilt. The bill does not actually cut off  funding, for the moment, but sponsors threaten to do so in future if Vanderbilt does not change its policy. The bill now goes to Governor Bill Haslam for signature.

A couple of terms ago, in CLS v. Martinez, the Supreme Court held that a similar all-comers policy at the University of California-Hastings was constitutional. As I’ve argued before, though, even if an all-comers policy is constitutional, it’s very misguided. The point of campus diversity is to allow the expression of various viewpoints. It’s hard to see how a group can express a viewpoint if it cannot choose leaders who share its beliefs.

Posted on by Marc O. DeGirolami

Justice John Marshall Harlan on Education and Religion

In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908).  The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching.  The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).

I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:

The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children.  So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church.  In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters.  Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people?  The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public.  The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.

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Education & Belief: Citizenship

“A high level of shared education is essential to a free, democratic society and to the fostering of a common culture, especially in a country that prides itself on pluralism and individual freedom.” (A Nation at Risk, 1983)

One of the main justifications for a uniform system of schooling, first articulated by Horace Mann and others in the 1830s and ‘40s, is that a common educational experience is necessary to make one people out of a nation of immigrants with different languages, religions and cultures.

Forming democratic citizens capable of self-rule had been a goal of education since Revolutionary times. Nearly all of the Revolutionary leaders wrote about the important role of a liberal arts education in encouraging attachment to republican principles and in energizing social mobility. Many of them opened schools and designed curricula for this purpose, resulting in high rates of literacy in the former colonies, particularly in New England (Pangle & Pangle in The Learning of Liberty). Mann’s contribution was to argue that state-enforced uniformity could do this more efficiently than the ad hoc network of schools that prevailed in his day.

The drive for uniform, state-sponsored schooling initially was resisted on political and religious grounds. However, as the 19th century progressed, the United States experienced large-scale immigration of European Catholics. Read more

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Education and Belief: Ontology

Educational philosophy raises four distinct but related questions:  What is education for? What is the nature of the child? What is the role of adults? Who decides which view is right?

The last post highlighted several prominent disputes about the purpose of education. Even if we agreed about the purpose of education (say, that it existed to transmit knowledge and to foster democratic citizenship), the second and third questions – how we think about the nature of the child and the role of adults – are also deeply contested and lead to quite different pedagogies. This is because they ask us to consider our basic assumptions about human nature. This is what the Greeks called an ontological question, since it concerns the essence or the nature of a thing.

Two broad conflicts have played out in American education: the first between the traditionalist and the progressive, the second between the religionist and the secularist. What are the ontological distinctions between them?

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Education and Belief

Thank you to Mark Movsesian and Marc DeGirolami for the chance to participate in the Center for Law and Religion’s blog. I am delighted to work with them in addressing questions about the relationship between religion, law and culture. My primary interest in the next few weeks is exploring these concerns in the context of American education.

America’s current educational battles are about competing beliefs and commitments. This may sound like a strange assertion, given the practical nature of the debates on No Child Left Behind, vouchers, teachers unions, the curriculum, and so on. However, beneath such disagreements are deeper and more profound ones that are philosophical and cultural in nature: about the purpose of education, the nature of the child, and the question of authority.

Put differently: educational policy always rests upon particular views about who the child is and what education is for. In this sense, schooling is always about philosophy – explicitly or implicitly. Whose philosophy, though? Why one set of assumptions and not another? How does American public education reflect past debates about pluralism and democracy? Finally, how might our present disputes be improved, and perhaps fresh solutions achieved, by re-visiting these foundational questions?

This task is difficult because of the inescapable nature of culture, the taken-for-granted backdrop to our individual experiences and social encounters.  Speaking in sociological terms, “culture” consists of the ideas and institutions Read more

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Garnett on School Choice and the Future of Catholic Schools

Nicole Stelle Garnett (Notre Dame Law School) has posted Are Charters Enough Choice? School Choice and the Future of Catholic Schools. The abstract follows.

This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices.  This essay is, in essence, a response to this “charters are enough,” argument. It proceeds from the simple reality that current education policy in most states offers Catholic school leaders an unacceptable ultimatum: If you want access to public education funds for your schools, then secularize and relinquish control of them. As a result of this ultimatum, Catholic schools will continue to close by the dozens in the inner city neighborhoods each year, and many of them will be replaced by charter schools, either by design or default. For reasons addressed in the essay, Catholic schools’ departure is a loss for civil society, especially for the urban communities where they have served for decades. Furthermore, it is a loss that could be mitigated by school-choice devices that make private schools financially accessible for the children living in these communities who desperately need the high-quality education that Catholic schools have long provided. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.

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Nasab and Meghdadi on Human Rights Education in Muslim Societies

Ahmad Erfani Nasab (Mofid University Legal Clinic) and Mohammad Mahdi Meghdadi (Mofid University) have posted Muslim Clerics and Leadership in Human Rights Education in Muslim Societies. The abstract follows.

Several human rights instruments have declared that human rights education is a fundamental right for all. However, human rights education in Muslim societies is still facing serious challenges most of which arise from lack of effective educational methods. Our research shows that Muslim clerics can be considered as leaders of human rights education in Muslim societies, playing an important role in addressing and dealing with most of the challenges and enhancing universal culture of human rights. The findings indicate that in an effective human rights education method resulting in flexible, accessible, acceptable and sustainable human rights, Muslim clerics can be considered to play an active role. In addition, the results highlight that this educational method can promote, localize and institutionalize human rights in such societies and can help prevent and resolve the possible conflicts between religious and human rights discourses.