kitchen table math, the sequel: tour de force

Monday, September 24, 2012

tour de force

C. is taking John Sexton's "The Supreme Court and Religion." Last week the class read Wallace vs Jaffree, which includes this passage from Justice Rehnquist's dissent:
For example, a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools 10 but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U. S. 349, 367, 371 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U. S., at 241. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school,12 such as in a trailer parked down the street. Id., at 245. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.
WALLACE, GOVERNOR OF ALABAMA, ET AL. v. JAFFREE ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 83-812. Argued December 4, 1984-Decided June 4, 1985. (110-111).
All of these inconsistencies could be easily resolved with vouchers and tax credits! update: In an ideal world, that is. Not inside the actual world we live in.

update 9/29/2012: Rehnquist compiled the list above to support his argument that the Court's 1971  "Lemon test"had resulted in unprincipled and inconsistent decisions.
...[T]he wall [of separation between church and state] idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson [1947] our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Tilton v. Richardson, 403 U. S. 672, 677-678, (1971); Wolman v. Walter, 433 U. S. 229, 236 (1977); Lynch v. Donnelly, 465 U. S. 668, 673 (1984).
* Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971)

and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

18 comments:

Auntie Ann said...

I don't think there are inconsistencies. It basically boils down to: the government can not spend money in a way which would relieve a sectarian school of costs, and thus free a sectarian school to spend that money on religious uses.

Of course, vouchers would make this whole thing moot. Here's hoping!

Anonymous said...

Money is fungible.

The only way (here) that it would not be would if the government was paying the school to do something that the school wouldn't otherwise do (e.g. take a state requested, but not required, test).

So pretty much *ANY* money sent to the sectarian school can eventually
be used for religious purposes.

Plus, I don't think that the geography textbook vs. maps example in the first sentence supports the idea that the money should not be divertable for religious reasons.

-Mark Roulo

Allison said...

Sorry, no time to read the original. Was Rehnquist's point that these distinctions were absurd?

Can anyone explain the majority's opinion? By what rationale did they divide the baby? In other words, why does anyone believe vouchers tied to a person are more constitutional than cash paid to a religious school for non religious programming that then allows them to spend their own money on religious ed?

Nonetheless, don't look to vouchers to save us. Here in MN, the archdiocese of MSP wants in on vouchers, and so has agreed to an absurd need for an "apples to apples" comparison with publics, and therefore, will restrict parish school teachers to only state credentialed folk, and require the same state tests be used, among others bits. The whole point was to have oranges, tomatoes, and steak available, not just apples, but that notion was too complicated for the curia, it seems. Depending on Caesar's money isn't going to go well for them.

Hainish said...

Catherine, if you haven't read this yet, you really need to:

http://www.theatlantic.com/magazine/archive/2012/10/the-writing-revolution/309090/

Shannon Severance said...

"Depending on Caesar's money isn't going to go well for them." I've believed for quite awhile that frequently, in particular instances, government & Church coziness does more damage to the Church than to the rights of the non-Christian. But usually it is he non-Christians who will fight to keep the two apart.

By the Church, I mean the entirety of the body of Christ. Not limited to The Roman Catholic church.

The next paragraph, after the paragraph quoted by Catherine:

These results violate the historically sound principle "that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that `aid' religious instruction or worship." ... It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test. From FindLaw

One of the concurring opinions does respond to Rehnquist's attack on the Lemon test. But at that point, it is over my head.

I ran down the text books versus maps issue and the distinction is lending to the textbooks to "parochial school children" (emphasis added) and lending maps to the school.

Catherine Johnson said...

Rehnquist's point was that these distinctions are absurd. I'll have to post his introductory comments to make that clear.

the government can not spend money in a way which would relieve a sectarian school of costs,

Rehnquist is pointing out that the Supreme Court **has** allowed the state to spend money on parochial schools.

Rehnquist says that the Supreme Court has been making unprincipled decisions because the Court has been trying to apply Jefferson's observation about the "wall of separation" between church and state, which does not appear in the Constitution and was not intended by the framers.

Catherine Johnson said...

Here in New York, public schools are required to bus students to private schools, including parochial schools. Also, public schools must pay for textbooks for students in private schools, including parochial schools.

Catherine Johnson said...

The point about the state overseeing church activities as a result of providing tax money to church activities is a key argument in some of these cases.

The Lemon test requires that a statute not result in "undue entanglement" between church and state, and the argument is that any provision of tax money inevitably will result in undue entanglement.

Rehnquist and, I ***think***, Burger don't think much of that argument. (Must check Burger.)

Burger's dissent is fantastic.

As to the issue of the state doing damage by providing funding, that's possible (though I don't see it personally. Churches & temples have had tax exempt status forever without having to submit to state oversight).

But against that possibility you have to balance the fact that the state is essentially 'taxing' parochial schools by forcing parents to pay for public schools their children don't attend.

Charter schools are putting Catholic schools out of business, making the demise of Catholic schools a direct result of state spending.

One thing I've learned reading macroeconomics for the last 2 (3?) years: money is finite. That may seem obvious, but it wasn't to me because for so long the economy was growing robustly & the money supply was growing robustly, too. As were home values & household wealth.

But money is finite. There is only so much of it in circulation at any given time, and when the state takes more of it to fund public schools, private schools have less to work with.

Catherine Johnson said...

Nonetheless, don't look to vouchers to save us. Here in MN, the archdiocese of MSP wants in on vouchers, and so has agreed to an absurd need for an "apples to apples" comparison with publics, and therefore, will restrict parish school teachers to only state credentialed folk, and require the same state tests be used, among others bits.

Appalling.

The funny thing is: back when I started writing ktm, I would see the occasional conservative Christian home schooler refer to public schools as "government schools." I would experience a slight frisson - can you say that? Government schools!?

Read 5 pages of any Supreme Court decision on prayer in the schools and you see at once that to the Court public schools are government schools pure and simple. There is no wall of separation between a public school and the government that establishes and funds it.

Catherine Johnson said...

Depending on Caesar's money isn't going to go well for them.

It's not Caesar's money.

It's 'our' money, and we should decide how to spend it.

Having spent four years funding my fantastically expensive public school AND paying out of pocket for a Jesuit high school, I feel VERY strongly that the state has no business forcing me to pay for a school I would not choose freely and whose policies and curriculum I do not value.

lgm said...

>>>Here in New York, public schools are required to bus students to private schools, including parochial schools. Also, public schools must pay for textbooks for students in private schools, including parochial schools.

The bussing is limited to 15 miles from the home district. When we looked in to sending our child to a school 17 miles away,(several years ago) the fee for bussing was $7k, roughly equal to tuition.

Nurses at the private school are paid from the public school budget too.

Textbooks are interesting. The public school here isn't providing textbooks or summer reading books. I've had to purchase appropriate texts.

Catherine Johnson said...

The bussing is limited to 15 miles from the home district.

Yes, right.

We JUST made it under the 15-mile limit for C's high school.

Catherine Johnson said...

Textbooks are interesting. The public school here isn't providing textbooks or summer reading books.

Your district doesn't provide textbooks at all?

I ***think*** that's probably illegal in NY. (I can check Education Law if you like.)

Catherine Johnson said...

It's 'our' money, and we should decide how to spend it.

I should add that this principle applies to the state using its power, which derives from our tax dollars, to force private and parochial schools to hire ed-school credentialed teachers and the like.

Any way you slice it, the state is supposed to be answerable to the people, AND the people are supposed to have minority rights.

I'm well aware that a majority of parents in my town believe that the minority of parents who are unhappy with the schools should have to pay twice for their children's education.

That doesn't make it right, and it's not consistent with basic Constitutional principles as I understand them.

We don't have majority 'rule.'

We have a negotiated republic.

(That's probably not the right term, but it's the right concept.)

gasstationwithoutpumps said...

> The bussing is limited to 15 miles from the home district. When we looked in to sending our child to a school 17 miles away,(several years ago) the fee for bussing was $7k, roughly equal to tuition.

> Nurses at the private school are paid from the public school budget too.

Wow. Out here in California, there is little busing and few nurses in the public schools, certainly no subsidy of nurses or buses for private schools. (Except for kids with disabilities, as dictated by federal law.)

lgm said...

The district provides textbooks for some courses. Regent's Chem and Regent's Physics were annoying as there is no text at all, just handouts that can't convey any 3D info, so I buy an appropriate resource or two. English novels are sometimes provided..we are supposed to borrow from the public library or purchase if no novel is provided.

TerriW said...

Here in MN -- as homeschoolers -- we can fill out paperwork and submit receipts to petition our local school district to reimburse us up to 80ish dollars per child (40 for K) for textbook reimbursement.

It varies wildly from district to district, though -- I happen to live in a relatively flush district so they never hassle us (no religious materials, obviously), but I have a friend that lives in a much more strapped district, and they have decided to interpret the law to mean that she can come in and borrow some of their unused textbooks for the year. She doesn't take them up on that.

lgm said...

I get the English novels from thrift shops. They are all discards from area high schools.

The 'texts' are funny. The most helpful are actually the Regent's Test Prep books and Greg Curran's Science books in the "Homework Helpers" line. My kids' teachers really need to do a master class with him - he can get the point across effectively and appropriately.