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Wednesday, May 06, 2009



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.


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.


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.


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!


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.

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