Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.
The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.
First Things has just posted an important and thoughtful essay by Ashley Berner, “The Case for Educational Pluralism.” Berner (left), co-director of the Moral Foundations of Education Project at the University of Virginia’s Institute for Advanced Studies in Culture — and an occasional guest blogger at CLR Forum — argues that pluralism can offer great benefits and help resolve tensions in public education.
Unlike the American model, which relies on government to deliver education, the pluralist model involves government funding of private schools. These schools may reflect a variety of beliefs and perspectives, both religious and non-religious; public oversight is limited to ensuring that general educational requirements are met. Berner points out that many Western democracies have such systems, which allow greater educational diversity than the American model. Moreover, pluralism avoids a central problem of American public education: a false neutrality that masks a secularist philosophy many parents reject.
Berner concedes that educational pluralism comes with problems of its own and may face constitutional difficulties under current law. But, she writes, pluralism “offers an honest acknowledgement of the myriad value judgments inherent in any education and generously accommodates a variety of beliefs and opinions in a way more congruous with the United States’ democratic political philosophy than does the current system. While some people fear that such pluralism would produce division and harm the students educationally, evidence suggests that, in fact, pluralism often yields superior civic and academic results.” Read the whole thing.
This October, West Law will publish Larson’s Creationism in the Classroom: Cases, Statutes, and Commentary by Edward J. Larson (Pepperdine University School of Law). The publisher’s description follows.
This casebook, by a Pulitzer Prize-winning author, explores fundamental legal issues relating to how scientific and religious concepts of biological origins should be presented in public-school biology courses. Although numerous legal arguments are invoked, the Establishment Clause typically stands at or near the center of most disputes: Does teaching Darwinism or creationism, or disparaging them, in public schools promote or hinder religious belief in violation of the First Amendment? In grappling with this question in various forms as presented in differing fact situations over the past half century, American courts have examined the meaning of the Establishment Clause and sharpened their interpretation of it. This is the first and only casebook devoted to this topic, and it is ideal for use in education law programs, constitutional law seminars, and legal history courses.
This August, Routledge published The Routledge International Handbook of Religious Education edited by Derek Davis (Baylor University) and Elena Miroshnikova (Tula Leo Tolstoy State Pedagogical University). The publisher’s description follows.
How and what to teach about religion is controversial in every country. The Routledge International Handbook of Religious Education is the first book to comprehensively address the range of ways that major countries around the world teach religion in public and private educational institutions. It discusses how three models in particular seem to dominate the landscape.
Countries with strong cultural traditions focused on a majority religion tend to adopt an “identification model,” where instruction is provided only in the tenets of the majority religion, often to the detriment of other religions and their adherents. Countries with traditions that differentiate church and state tend to adopt a “separation model,” thus either offering instruction in a wide range of religions, or in some cases teaching very little about religion, intentionally leaving it to religious institutions and the home setting to provide religious instruction. Still other countries attempt “managed pluralism,” in which neither one, nor many, but rather a limited handful of major religious traditions are taught. Inevitably, there are countries which do not fit any of these dominant models and the range of methods touched upon in this book will surprise even the most enlightened reader. Continue reading
The Forum 18 Blog has an interesting article by Mine Yildirim (Åbo Akademi University) on the freedom of religion provisions in a draft constitution currently under consideration in Turkey. The ruling Islamist AKP party and the opposition secularist CHP party have agreed on some provisions, but not all, and Yildirim describes the result as a mixed bag. For example, for the first time, the constitution will contain a clause conferring a right to change one’s religion. As Yildirim points out, many majority-Muslim countries reject such a right, and the AKP deserves some credit for accepting the language (though Islamists sometimes interpret such language to confer only a right to convert to Islam). On the other hand, the AKP has refused to discontinue compulsory religion classes in public schools. Minorities, especially Alevis, claim these classes amount to proselytism, and the ECtHR has agreed on at least one occasion (Zengin v. Turkey). Also, the AKP rejected the CHP’s proposal for a clause stating that “the state is impartial toward all religions and beliefs in all its proceedings and actions and will respect social pluralism based on the diversity of religions, beliefs and opinions.” The AKP argued that such a provision would invalidate the state’s Ministry of Religious Affairs, or Diyanet, which has a major role in promoting Sunni Islam in Turkey. Here’s Yildirim’s closing paragraph:
The challenge for the AKP – as the current ruling party – remains to devise policies which genuinely respect the religious freedom of Turkey’s increasingly pluralistic society. This starts with the Constitution and also includes other legislative changes to protect religious freedom in line with the country’s existing human rights commitments. The AKP’s non-recognition of Alevi cem houses (places of worship), insistence on the compulsory [religious education] lessons, strengthening the Diyanet’s position as a publicly-funded religious institution, and the comments of AKP politicians, indicate that the party fails to devise policies that respect Turkey’s pluralistic reality and observe the principle of impartiality on the part of the state.
The Wall Street Journal‘s Law Blog reports today that, as the new school year begins, the ACLU of South Carolina has sent a letter to public schools in the state reminding them of their constitutional duty to avoid promoting religion:
“It’s important that all students know that they’re going back to school to a place where they will be welcome no matter what they believe,” said Victoria Middleton, executive director of the ACLU of South Carolina, in a statement Monday. The group claims to have received numerous reports of religious freedom violations, including complaints that many South Carolina schools impose religion on students.
In response, South Carolina’s education superintendent accused the ACLU of trying to intimidate students from engaging in legitimate religious expression in public places. Sounds like litigation ahead.
That’s the verdict of the Student Judiciary at the State University of New York at Buffalo, which has reinstated the local chapter of Intervarsity Christian Fellowship as a campus student organization. Earlier this year, the Student Senate had revoked recognition because of Intervarsity’s requirement that leaders in the organization affirm traditional Christian beliefs, including beliefs about homosexuality. Last December, the chapter’s treasurer, who is gay, told the university’s student newspaper that he had been pressured to resign because he would not sign a statement affirming the truth of Biblical passages, including passages condemning homosexual conduct. The Senate believed this episode showed that Intervarsity violated the university’s non-discrimination policy, but the Judiciary disagreed, arguing that one must distinguish between membership and leadership in a student organization. Intervarsity was open to all SUNY-Buffalo students, including gay students, the Judiciary explained; but “it is common sense, not discrimination, for a religious group to want its leaders to agree with its core beliefs.” Similar disputes about the religious freedom of student groups have occurred recently at other American universities, including Vanderbilt, and of course, UC-Hastings Law School, the subject of the Supreme Court’s 2010 ruling in CLS v. Martinez. Martinez held that an “all-comers” policy requiring student religious organizations to open their leadership to all students regardless of belief is constitutionally permissible. That’s not to say an all-comers policy is constitutionally required, however.
The article, Parental Rights and Public School Curricula: Revisiting Mozert after 20 years, by Professor Eric A. DeGroff of Regent University School of Law, has been reposted to SSRN. Originally published in 2009, Prof. DeGroff’s article revisits the jurisprudence of balancing parents’ recognized right to direct their childrens’ education and upbringing under the Due Process and Free Exercise clauses against states’ interest in compelling school attendance and determining their own curricula. See Mozert v. Hawkins County Bd. Educ., 827 F.2d 1058 (6th Cir. 1987). See also Wisconsin v. Yoder, 406 U.S. 205 (1972). Detailing recent circuit inconsistency on the issue, DeGroff argues that courts should exercise heightened judicial scrutiny when state curricular requirements conflict with parental rights.
Please see the abstract after the jump. Continue reading