Darwinist Teacher/Establishment Clause 2

My last post on this topic attracted some very thoughtful comments, and I thought it best to give them the visibility of a new post.  In C.F. V Capistrano Unified School District, a Federal District Court in California found that a high school teacher (James Corbett) violated the Establishment Clause of the Constitution when he said that "creationism" was "superstitious nonsense."  I thought this a bad decision for reasons I stated there, but I also thought that the District Court has an argument based on recent Supreme Court Jurisprudence.  The best question was stated by A.I. this way:

Perhaps I'm being a bit obtuse or need another cup of coffee, but I must ask the rhetorical question: How do Corbett's statements rise to the level of being "law" and thus violating the establishment clause?

Miranda asks the same question:

How does what a teacher says rise to the level of being a law? Or, for that matter, how does another student's prayer become such? These things seem to fall under the establishment clause, simply because a court decided they should.

Now I don't know the law on this question very well, but here goes nothing:  the Establishment Clause, like the rest of the Constitution, places limits only on governments and never on private persons.  In such cases as the Constitution makes something illegal altogether (like slavery), it is directing federal and state governments to control the activity by ordinary law. 

However, governments are composed of people, and "people" of persons.  A person may be controlled by the Constitution if he or she is acting in a public capacity.  Mr. Corbett is, I presume, an employee of the State of California.  So it is not out of the question that his conduct might be proscribed by the First Amendment.  For the same reason, the teacher has limited recourse to a freedom of speech appeal.  Government speech clearly can be controled by the Constitution.  Free speech would enter the picture only if some government tried to interfere with the teacher in a manifestly partisan way. 

Miranda goes on:

But if courts have ruled against even a moment of silence in schools merely because they might make a student "contemplate religion", and says that such a thing violates the establishment clause, certainly this falls under the same umbrella.

The High Court's Establishment Clause jurisprudence has frequently involved collisions between school and school board policies and the Constitution.  Like Miranda, I think that a lot of this jurisprudence is ill-advised and poorly constructed; but it is not student prayers that are said to violate the E.C., it is such policies as mandated, teacher-led prayer or Bible reading at the beginning of the school day, or at graduation ceremonies, etc.  Off hand, I don't know of another case where a teacher's choice of words in the conduct of his class has come under First Amendment scrutiny.  I think that this is a very bad precedent, and I am guessing this case is headed uphill. 

Miranda corrects me on one point.  I said:

"Creationism" isn't religion.  It is a doctrine which holds that scientific facts support the literal truth of the Old Testament creation story.  I agree with Cory that this is nonsense, and that it distorts both science and the Biblical text. 

Miranda says:

I disagree with you, Dr. Blanchard, on the issue of the lemon test.  The word "Creationism" dates back to the 1800s. It's meaning, according to The Random House Dictionary, is, "The doctrine that matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed." A doctrine is merely a teaching. The word often has religious connotation. But the definition says nothing of creationism being a "scientific theory." Creationism itself might not be a religion, but it is PART of a religion. Attacking it is like attacking someone for praying, or washing their feet.

I concede that the word "Creationism" sometimes means a belief the Biblical story of creation. 

But the "ism" implies, as Miranda points out, a doctrine about matters on which science is competent to speak.  To say that the doctrine that "matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed" is nonsense, is a perfectly reasonable thing for a history or biology teacher to say.  It has firm secular ground, as the said doctrine flys in the face not just of Darwinism but of geology, astronomy, and physics.  If saying such a thing violates the E.C., then so does illustrating it by teaching those subjects.  

In my defense I would point out that "Creationism" in the context of Constitutional Law almost always means Creation Science, which is all or mostly all nonsense.  The Grand Canyon was formed sometime in the last six thousand years when the universal flood receded?  Where did all that water go? 

At any rate, C.F. v. Capistrano has exposed a logical problem in the Court's E.C. jurisprudence.  In Edwards v. Aguillard and the Dover case, the Supreme Court identified the mandated teaching of Creation Science and Intelligent Design Theory respectively as promoting religion.  Okay.  But the E.C. forbids either promoting or inhibiting religion.  So isn't anything in a classroom that explicitly criticizes Creation Science and Intelligent Design Theory inhibiting or siding against religion?  On the question whether the Constitution forbids states to mandate such teachings, I am conflicted.  I think such things surely should not be taught in public schools.  That is because I think that they amount to bad science.  But as Scalia points out in his dissent in Edwards, the Constitution doesn't prohibit bad science. 

Cory and I agree with Miranda's theologically careful statement:

And if there is any doubt over whether or not Mr. Corbett was attacking the religion or what he saw as a scientific theory, one has only to look at his comment about the "Jesus glasses." Jesus has nothing (at least nothing obvious) to do with the Creation story.

Miranda is speaking of this comment by teacher Corbett:

When you put on your Jesus glasses, you can't see the truth.

That crosses two lines.  It is obviously a direct attack on the Christian viewpoint and it seems calculated to single out religious believers in class.  But I think there is general agreement among us in this exchange that this is not a matter for the courts.  The school authorities should have reined in Mr. Corbett.  Since they apparently failed to do so, there were other avenues of redress for students and their parents.  Bringing a teacher under First Amendment scrutiny looks to me like an unprecedented interference in the teacher's business. 

Finally, A.I. adds:

that Mr. Corbett's student also appears to be an ass and an anti-science bigot. That does not excuse Corbett's "assiness", but it may explain his frustrations with the student.

A.I. is heroically trying to find some disagreement with me here, for which effort I applaude him.  As he says, where's the fun in agreeing?  So I will go along and say that the student is entitled to be an ass.  Education should, on occasion, be offensive.  Otherwise it is not genuinely challenging.  But if so, we can hardly blame a student for being offended. 

Comments

[A.I.]

Actually Ken, I intended no disagreement by noting the student also was an ass. I only meant to convey some empathy for the teacher's frustration. Had I fully expressed my sentiments, I would have noted the teacher was the authority figure within the relationship and thus, I believe, under some greater obligation to restrain overt expression of his being an ass. But the obligation should have been born out of courtesy, maturity and school policy, not outside legal restraints.

If I interpret Miranda correctly, she seems to be saying various court cases ban all prayer in public school. As you point out, the the types of laws dealt with here apply to the school but not to individuals. So for the sake of clarity, I note a student can pray in school so long as it is his decision to do so, not the school's. However, the school may restrict the method of prayer if the method is disruptive to normal school activity.

I am old enough to have participated in school-led prayer. For what my opinion may be worth, the Court was right to end the practice. The callousness of youth blinded me at the time, but looking back, I realize the prayers used discriminated against minority religions within the school, were hurtful and caused undue discomfort. And it so happens a relatively recent opinion, Santa Fe Independent School Dist. v. Doe, was brought by people of faiths made uncomfortable in my school prayer experiences, Catholics and Mormons.

I use the terms "discriminated against" and "uncomfortable" as insufficient expressions of the extent to which the minority religions must have been made to feel separate from their classmates and teachers. And these were differences within the Christian faith. I cannot fathom how much worse the situation would have been had some of my classmates been Muslims. Thus I am grateful for a Constitution that includes the E.C. and for the way the Supreme Court has applied it to school prayer.

[Miranda]

Dr. Blanchard:

Thank you for taking the time to post such an extensive reply.

Your explanation of the court's claim to power is certainly better than, "it emanated from a penumbra." Yet, I'm still not convinced that it works.
The question here is not whether a school is subject to constitutional law. It is, rather, whether or not a particular clause of the constitution
applies to schools. In my view, it does not. The establishment clause, as A.I. points out, specifically limits congress. Noticably, it does not limit state
legislatures or any of the other branches. It certainly does not say anything about public schools. We cannot just assume that when the constitution makes
a provision for one branch or group that that provision applies to every or any other branch or group. If we could, the excecutive branch could make laws.
So, for that matter, could public school teachers.

I do have to concede that the courts seem to rule against state sanctioned religious displays, rather than the displays themselves - although their view of what
constitutes "sanctioning" has sometimes been a bit suspect.

I have no doubt that you're right about the traditional use of the word "Creationism" in constitutional law. But the word was not used by a judge. It was used
by a school teacher, who context tells us, is anti-Christian, not just anti-Creation Science.

I'm not sure it matters in this case, whether or not you think something is nonsense. What matters is that it is someone's religious belief.
There are plenty of religious ideas that don't make a bit of sense to me. Some of the stories about Krishna, for instance, could not I think,
possibly have happened. But I would still not condone a teacher's ridiculing of a hindu student, based on his beliefs. Still, as you say, no
one has a right not to be offended.

[KB]

Great comments as usual. I am going to have increase A.I. and Miranda's pay!

A.I.: there you go being agreeable again. This has got to stop. I don't think I heard a prayer in school after Ms. Burgess' Kindergarten, where, I believe, I first learn to say the Lord's prayer. I don't believe that prayers in public school discriminate against anyone. Lots of things are said in public schools that are not shared by and may offend some students. I know that the court's establishment clause cases do not turn on discrimination. They turn on the notion of compulsion. Students are compelled to be in school, and if they are subject to state mandated or conducted prayer, they are at least "subtly" pressured to participate. The court reads this as an establishment clause violation. It amounts to a violation of everyone's rights, even those who agree with the prayer.

Miranda: The First Amendment indeed applied only to Congress when it was first written. In the twentieth century the Court began to apply it to state government acts under the incorporation doctrine. According to the latter, the due process clause of the Fourteenth Amendment (which explicitly applies to the states) incorporates all or almost all of the first ten amendments. One may well wonder whether that doctrine was correct, but that ship sailed a long time ago. It's hard not to think that it's just as well. I don't think the state of California should be free to abridge my freedom of speech any more than Congress can.

Constitutionally speaking, there are only two levels of government in the United States: Federal and State. County and city governments, school boards and schools, are creatures of the state under which they are established. So, barring an unexpected abandonment of the incorporation doctrine, the First Amendment clearly does apply to schools.

Again, this strikes me as a good thing. If a state decides on a curriculum that encourages tolerance and respect for homosexuals, it can do so. If the curriculum is clearly designed to undermine specifically religious beliefs, about sexuality or the age of the earth or the divinity of Christ etc., that would violate the establishment clause and arguably the free exercise clause. I think those protections are probably a good idea.

Your arguments well-illustrate the difficulties that this can involve. Some religious beliefs are not subject to scrutiny by science. This is because they involve a premise that science can neither refute nor allow: the existence of a power not subject to any physical limits. For a teacher to call such beliefs nonsense would clearly be crossing the line though, as we seem to agree, this is not a proper subject for litigation.

Other religious stories and teachings involve claims that are subject to rational investigation. Is it factually plausible that a breeding pair of every animal that can't tread water was kept alive on a boat for forty days? How many extra wildebeests do you need to house to feed the lions? I think that this story is true in an important sense, but I don't think it can be literally true. Likewise, a natural formation of sand in stone in Sri Lanka is believed by Hindus to have been built by monkeys at the command of Lord Ram. As a matter of faith, I have no quarrel with this. As a plausible story, I think its nonsense. I wouldn't put it that way in class before a Hindu student, but that is a matter of tact.

We are arguing a subtle point here, because we agree that Mr. Corbett was a bigot and an ass. But the subtle point is the heart of the matter. I don't think it at all a bad thing for religion or for science for the two to come into conflict in a secular classroom. I believe that the conversation has been the greatest source of intellectual energy in Western Civilization since the time of Saint Augustine. A line needs to be drawn as to which questions are proper and which are not. There is no chance we will all agree on where to draw the line,and that is one reason why the courts should not interfere.

[A.I.]

OK Ken, I like irony as much as the next person, but I really must protest you last post. You leave me no choice but to agree to stop agreeing. That is totally unfair!

[Miranda]

I know I'm a bit slow on the draw here, but in my defense, my computer is packed
up on a moving truck. Still, I couldn't just leave your argument unanswered.

I think is is preposterous to say that just because something has been happening for years that it is legitimate. One might have made a similar argument about
slavery. "Well, it might not be a nice thing, but that ship sailed long ago."
One would have to ask whether tradition or freedom were more important. I think most Americans would choose freedom.

The court's usurpation of power here may not be as obvious an evil as slavery,
but it is, I think, still dangerous. It means that our government's powers
are not as separate as they ought to be, and that threatens our freedom. I do not dispute that some good might have come from the court's decision, but it was
not the court's place to make that decision.

Good things can come from anywhere. Some of the world's cruelest dictators have
been responsible for great accomplishments. Consider Peter the Great, Napoleon or even Hitler. But the fact that some good came out of what these men did
did not make what they did right. So I am a little reluctant to give the court
a pass here, just because the action may have resulted in a few things that
are pleasing.