The Old Gray Mare Ain’t What She Used To Be: A Survey of Selected Separation of Church-State Issues VSBA School Law Conference Charlottesville, Virginia June 3, 2011.
The Old Gray Mare Ain’t What She Used To Be:
A Survey of Selected Separation of Church-State Issues
VSBA School Law Conference
June 3, 2011
Public Dollars for Private , Religious Tuition?
Beginning at the beginning…
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Inherent tension between government endorsement (separation of church & state) and free exercise of religion.
Growing trend away from separation towards free exercise.
This trend is evident at the Supreme Court…
Arizona Christian School Tuition Organization v. Winn, No. 09-987 (U.S. Apr. 4, 2011).
….and no surprise…
The Ninth Circuit relied on Supreme Court precedent to determine when “vouchers” are permissible…
Heavy focus on James Madison’s 18th Century writings on separation of church and state.
Both look at Madison’s writing in a publication entitled Memorial and Remonstrance (1785?)
…the government should not “force a citizen to contribute three pence only of his property for the support of any one establishment.”
But, if this is a higher education case, why does NSBA care? Aren’t law students adults, for the most part?
In the K-12 context the challenge is between the free association rights of students and maintaining a learning environment free of discrimination, which is in an of itself part of the academic mission of schools.
1.NSBA encouraged the Court to allow public school districts to deny recognition to clubs that do not comply with a district’s nondiscrimination policy even if the Court reaches the opposite conclusion regarding public colleges and universities.
What’s the rationale?
The majority decided that the open membership rule imposed by the public law school on all student groups seeking official recognition, which requires the groups to accept all comers even if those individuals disagree with the mission of the group, is viewpoint neutral and constitutionally reasonable.
Recognition of the how the Culture Wars play out in public schools:
Court saw the law school as, “caught in the crossfire between a group’s desire to exclude and...” the law school’s general prohibition against discrimination.
NSBA Victory!!! “All-comers” policies are viewpoint neutral,
because they are aimed at theactof rejecting would-be group members without reference to the reasons motivating that behavior.
But still some question about pretext…
To be resolved on Remand. The Ninth Circuit could consider, on remand, whether the policy was selectively enforced as a pretext for discrimination, to the extent the argument was preserved, noted the court.
Strong dissent claims set-back for freedom of expression.
Surprise, Surprise Surprise!
Justice Alitowrote the dissent joined by the usual suspects.
Alito, defender of the unpopular. He said that Supreme Court precedents protect the freedom to express “the thoughts that we hate."
Political Correctness. "Today’s decision," he opined "rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”
Does the First Amendment protect teacher free speech rights in the classroom?
Johnson v. Poway Unified School District,
No. 07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).
The Supreme Court’s decision in Garcetti v. Ceballos dictates the outcome of this case in the school board’s favor.
Under Garcetti, the school district may regulate any work related speech by a teacher that takes place at school.
The policy consequence:
Don’t place schools in the untenable position of choosing between banning all teacher speech in the name of neutrality or allowing speech that is against the educational mission.
Particularly here, where the school district had a written policy disallowing advocating of religion in the classroom.
Morgan v. Swanson, No. 09-40373 (5th Cir., en banc review granted, Dec. 17, 2010).
-The students’ rights in this case were not clearly established because there is no on-point decision from the Supreme Court or the Fifth Circuit and,
-In fact, there is a lack of clarity of Supreme Court jurisprudence generally on religion in schools.
As a result, similar cases have been decided different ways by other federal circuit courts and recognize administrators must make determinations in widely varying factual contexts.