October 2011 Archives

Justice Clarence Thomas on Monday said that the U.S. Supreme Court's establishment-clause jurisprudence is "in shambles."

Citing divergent lower-court opinions on the display of crosses, the Ten Commandments, and other religious messages in courthouses, city halls, and public schools, Thomas said "our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess."

"Even if the court does not share my view that the establishment clause restrains only the federal government, and that, even if incorporated [i.e., applied to the states], the clause only prohibits actual legal coercion, the court should be deeply troubled by what its establishment clause jurisprudence has wrought," Thomas said in a lone dissent from the court's denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. (Case No. 10-1276).

The Supreme Court on Oct. 31 refused to hear the case involving white crosses placed on or near spots where members of the Utah Highway Patrol were killed while on duty. The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that although the crosses were placed by a private group, their location predominantly on public property conveyed a message that the state of Utah endorsed Christianity.

In his 19-page dissent, Thomas referred to a number of school cases that, in his view, reflect confusion or inconsistent application by lower courts of the Supreme Court's rulings under the First Amendment's prohibition against government establishment of religion.

He cited a 2005 decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that upheld a Virginia law mandating the recitation of the Pledge of Allegiance in public schools. That court applied Van Orden v. Perry, a 2005 Supreme Court decision about public displays of the Ten Commandments. Thomas used the 4th Circuit reference to rebut the assertion of the group of atheists who challenged the Utah crosses that the high court's Ten Commandments cases have not been applied to other areas of religious speech in the public square.

Thomas also cited a 2006 case which involved a challenge to the display of a menorah in the New York City public schools. The U.S. Court of Appeals for the 2nd Circuit, in New York City, upheld a school district policy allowing the display of a menorah along with the Islamic star and crescent, the Kwanzaa kinara, the Hebrew dreidl, and a Christmas tree, but prohibiting a Christian creche.

Referring to conflicting opinions by other lower courts, Thomas said that the message of the high court's rulings is that "a menorah displayed on government property violates the establishment clause, except when it doesn't."

Thomas also cited a 2008 decision by the 10th Circuit court that upheld a mural depicting crosses in a public elementary school in Las Cruces, N.M.

Referring to these decisions and numerous others by the lower courts on religious displays, Thomas said, "One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes."

Appropriately for an opinion issued on Halloween, Thomas also cited with approval a famous description by Justice Antonin Scalia of the high court's much-maligned Lemon test. Under that test, from the 1973 education case of Lemon v. Kurtzman, a government action that aids religion passes constitutional muster if it has a secular legislative purpose, it neither advances nor inhibits religion, and does not foster an excessive entanglement with religion.

In a concurring opinion in a 1993 school case, Lamb's Chapel v. Center Moriches Union Free School District, Scalia mocked the Lemon test.

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys" of the Center Moriches school district, Scalia said in Lamb's Chapel. He said the Lemon test was essentially being ignored by the court, and that "no fewer than five of the currently sitting justices have, in their own opinions, personally driven pencils through the creature's heart."

In a footnote to the main opinion in that case, Justice Byron R. White had a retort for Scalia. "While we are somewhat diverted by Justice Scalia's evening at the cinema, we return to the reality that there is a proper way to inter an established decision, and Lemon, however frightening it might be to some, has not been overruled," Justice White said.

Thomas concludes his opinion in the Utah crosses case by arguing that confusion over the legality of public displays of religion prompts government officials and "everyday people" to choose a "safer course" of purging "from the public sphere all that in any way partakes of the religious," which the establishment clause does not compel.

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A federal district judge has ruled that Alabama's property-tax system does not violate the equal-protection rights of black and poor schoolchildren in the state.

In an 854-page opinion on Oct. 21, U.S. District Judge C. Lynwood Smith Jr. of Huntsville dismissed a lawsuit brought by children and parents in Lawrence and Sumter counties. They alleged that the state's property-tax structure was rooted in racially discriminatory policies that created barriers that prevent black citizens from bringing about equitable school revenues.

Judge Smith's opinion in Lynch v. Alabama makes references to the film "Birth of a Nation," the novel Gone With the Wind, and quotes Frederick Douglass, Booker T. Washington, and Bob Dylan. The opinion also has two tables of content and a 15-page list of sources.

The judge was highly critical of what he said was the racist origins of the state's 1901 constitution, as well as present-day disparities in spending.

"The overwhelming weight of evidence in this record establishes—clearly, convincingly, and beyond reasonable debate—that virtually every provision of the basic charter of Alabama government drafted by the delegates to the 1901 Constitutional Convention was perverted by a virulent, racially discriminatory intent," the judge said. But the evidence of racial animus was less convincing with regard to state constitutional amendments adopted in the 1970s and 1980s, he said.

"Statewide, school systems are just as able to raise tax revenues for the education of black students as they are for the education of white students," the judge said. "In fact, Alabama's black students actually fare better in terms of yield per-mill per-student than do white students."

But the judge said he was bound by U.S. Supreme Court rulings that barred the plaintiffs' suit.

"Plaintiffs have proven a disparity in funding among the state's public school systems, but not a disparity along racial lines," Judge Smith said. "Faced with similar facts in San Antonio Independent School District v. Rodriguez, the Supreme Court ruled that such a variation in funding is rationally related to the legitimate governmental interest in permitting and encouraging a large measure of participation in and control of each district's schools at the local level."

"Like it or not," Judge Smith concluded, "Supreme Court precedent compels a conclusion that the property tax scheme embedded in Alabama's 1901 Constitution and subsequent amendments does not offend the Fourteenth Amendment's Equal Protection Clause."

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Clarence Thomas observes his 20th anniversary on the U.S. Supreme Court this week, and I have a story in this week's issue of Education Week that examines some of his opinions in education and youths' rights cases.

The story begins as follows:

"If the legal views of Justice Clarence Thomas had always prevailed in education cases that have come before the U.S. Supreme Court during his 20 years on that bench, schooling in this country would be different in a number of ways.

Administrators would have a much freer hand to discipline student speech. Students suspected of hiding drugs or other contraband would be subject to warrantless strip-searches by school officials.

At graduation ceremonies, students and perhaps clergy members could once again lead prayers.

States, meanwhile, could restrict the sale of video games to minors, and youths would have no First Amendment right to receive information without their parents consent.

And in higher education, race could play no part in admissions."

The story, Justice Thomas Holds Firm Views on Youths' Rights, is online now and in the Oct. 19 print edition.

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The U.S. Department of Justice has reached a consent decree with an Illinois school district over a lawsuit alleging religious discrimination in the case of a Muslim teacher who was denied leave to make a religious pilgrimage.

Berkeley School District 87 in suburban Chicago agreed to pay $75,000 in back pay, compensatory damages, and attorneys' fees to Safoorah Khan.

Khan, a nontenured middle school teacher, sought a two-week leave of absence in December 2008 to perform the Hajj, the pilgrimage to Mecca, Saudi Arabia.

"Employees should not have to choose between practicing their religion and their jobs," Thomas Perez, the assistant attorney general for the Justice Department's civil rights division, said in an Oct. 13 news release.

Khan complained to the Equal Employment Opportunity Commission when the district refused her request and compelled her to choose between her job and her religion, the Justice Department said. The department filed its lawsuit against the district in December, alleging unlawful discrimination based on religion in violation of Title VII of the Civil Rights Act of 1964.

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The U.S. Supreme Court on Tuesday refused to take up two appeals involving the First Amendment rights of students.

In one, the court declined to hear a challenge to a Tennessee school district's prohibition against any display of a Confederate flag by students. In the other, the justices refused to hear the appeal on behalf of students who challenged administrators' removal of a sexually explicit cartoon from a high school newspaper.

In the Confederate flag case, a federal appeals court ruling last November was the latest in a long line of rulings that have backed administrators seeking to prevent racial conflict over such symbols.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled unanimously last year in favor of the Anderson County school system and its bar against students displaying the Confederate battle flag or other representations. The appeals court upheld summary judgment for the school district in a free-speech challenge brought on behalf of a student who was suspended for wearing T-shirts depicting Confederate flags.

The 6th Circuit court said the school district has never completely escaped racial tensions since its schools were desegregated in 1956. Among recent incidents, when a black student displaced by Hurricane Katrina enrolled at predominantly white Anderson County High School in 2005, some students hung a large Confederate battle flag in a hallway, according to court papers.

In their appeal to the Supreme Court, the student and his father argued that the case presented an important test of whether schools may categorically forbid all "racially hostile" speech.

The justices declined without comment to hear the appeal in Defoe v. Spiva (Case No. 10-1513).

The student newspaper case stems from a 2005 incident involving The Tattler, the student paper at Ithaca High School in Ithaca, N.Y.

The faculty adviser of the paper pulled a cartoon featuring stick figures in various sexual positions, as well as an accompanying article by a recent Ithaca High alumnus headlined, "Alumni Advice: Sex is Fun!"

Students appealed to administrators, who backed the adviser. The district's superintendent said the stick figures "appeal to the prurient interest in sex," and that the cartoon would raise inappropriate questions in the minds of many students and interfere with the health curriculum's lessons on sexual abstinence and responsibility.

The students sued under the First Amendment, but both a federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City, upheld the school district.

The stick-figure cartoon is "unquestionably lewd" and thus fell under the Supreme Court's 1986 decision in Bethel School District v. Fraser, the 2nd Circuit court said in a May ruling. And the fact that the paper was school-sponsored was sufficient to trigger the application of the high court's 1989 decision in Hazelwood School District v. Kuhlmeier, the court said.

The Supreme Court declined without comment to hear the students' appeal in R.O. v. Ithaca City School District (No. 11-225).

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The U.S. Supreme Court on Wednesday struggled with a clash of the rights of churches to make employment decisions about workers with religious functions versus the interests of government in ensuring a discrimination-free workplace.

"Here what we have is a claim of retaliation, so that she can't even get a hearing," Justice Anthony M. Kennedy said about the lawsuit filed by Cheryl Perich, a teacher at a Lutheran school in Michigan who claims church officials dismissed her after she threatened to sue under federal disability law. (My preview story is here.)

"She can't get a hearing in a civil court, but she could get a hearing" in a Lutheran tribunal, said Douglas Laycock, the lawyer representing the Hosanna-Tabor Lutheran Church and School in Redford, Mich.

The church contends that Perich, a 4th grade teacher who mostly taught secular subjects but was a commissioned minister of the Lutheran faith, violated church doctrine by threatening to go to civil courts.

Her initial claim was that the church violated her rights under the Americans with Disabilities Act of 1990 in its handling of her medical leave for narcolepsy. The federal Equal Employment Opportunity Commission took up her case solely on the claim that the church had retaliated against her in violation of the ADA.

"Congress has not unconstitutionally infringed [the church's] freedom in this case by making it illegal for it to fire a 4th grade teacher in retaliation for asserting her statutory rights," Leondra B. Kruger, an assistant to the U.S. solicitor general, told the justices during the arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (Case No. 10-553).

The government appeared to retreat somewhat from a position advanced in its legal briefs that the U.S. Supreme Court should not recognize the "ministerial exception"—an exemption from anti-discrimination laws developed by lower federal courts and recognized for a range of church employees, from ordained preachers to parochial-school teachers and church music ministers.

"We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses," said Kruger, representing the EEOC and the Obama administration. But she added that the government has a strong interest in telling the church school "that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution."

Both Justices Antonin Scalia and Elena Kagan said they were troubled by the government's position that a church's right to dismiss a ministerial employee who defied church teaching was grounded primarily in the First Amendment's right of association, not in its religion clauses.

Justice Kagan said told Kruger she found it "amazing that you think that neither the free exercise clause nor the establishment clause has anything to say about a church's relationship with its own employees."

The Supreme Court has never ruled on the scope of the ministerial exception, but it seemed inclined on Wednesday to give it some degree of approval.

"The ministerial exception is not something new," said Justice Samuel A. Alito Jr. "It has been widely recognized ... by the courts of appeals going back 40 years."

Much of the argument was spent with the justices trying to get the lawyers to define which church employees should fall under the ministerial exception.

Walter Dellinger, a Washington lawyer representing Perich, suggested that the test should involve whether a church employee was carrying out important secular functions that were similar to those of government, such as a parochial school teacher who spent most of her time teaching secular subjects.

"That can't be the test," Chief Justice John G. Roberts Jr. told him. "The Pope is a head of state carrying out secular functions, right? Those are important. So he's not a minister?"

"There are ample doctrines to protect church autonomy," Dellinger said later in the argument, noting court rulings that judges may not order church officials reinstated into ecclesiastical positions.

Justice Sonia Sotomayor worried about a parochial-school teacher who loses her job after reporting sex abuse in the church to the government.

"Why shouldn't we protect the people who are doing what the law requires?" she said.

Justice Alito and others expressed concerns that without a broad ministerial exception, judges and juries would have to get involved in deciding the relative significance of a church tenet within that faith.

They might have to ask, "What did Martin Luther actually say ... about suing the church?" Alito said.

Perich, 57, appeared before reporters outside the Supreme Court building.

"My situation really had nothing to do with religion," she said. "I can't fathom how the Constitution would be interpreted in such a way as to deny me my rights."

The case will be decided by the end of the court's term next June.

Photo: Cheryl Perich addresses the media outside the U.S. Supreme Court on Oct. 5. The court heard arguments today in Hosanna-Tabor Lutheran Church and School v. Perich, a case that will decide whether parochial school teachers such as Ms. Perich fall under a doctrine that exempts church ministers from protection under federal anti-discrimination laws. (Maria Matveeva/Americans United)

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Opening its new term on Monday, the U.S. Supreme Court declined to take up a case challenging an Illinois law requiring a daily period of silent prayer or reflection.

The appeal was one of hundreds that the justices turned away as their summer recess formally ended. Other education cases the court declined to take up involved the outsourcing of public school services to a private religious school, and discipline of students with disabilities.

On Oct. 5, the court will hear arguments in the lone case that it has agreed to review this term involving schools, at least so far. In Hosanna-Tabor Lutheran Church and School v. Perich, the court will examine whether there is a "ministerial exception" to anti-discrimination laws that covers teachers at religious schools. I have a preview story in this week's issue of Education Week under the headline, "Court Case Puts Focus on Parochial School Teachers."

In the moment-of-silence case turned down Monday, a federal appeals court had upheld the Illinois law requiring schools to observe a daily period for "silent prayer or for silent reflection on the anticipated activities of the day."

The state in 2007 made mandatory a previously voluntary daily reflection period in the public schools. The law was challenged by Robert S. Sherman and his daughter, Dawn I. Sherman, as a violation of the First Amendment's prohibition against government establishment of religion.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, last year ruled 2-1 to uphold the law, saying there was a secular purpose behind the daily reflection period, specifically of calming students and preparing them for learning.

In their appeal to the Supreme Court, the Shermans argued that there were split decisions among the federal appeals courts about the constitutionality of moment-of-silence laws. The appeal, prepared by California atheist and attorney Michael A. Newdow, said the case would give the justices a chance to weigh the rights of atheists and their children to be free of religious influences in the public schools.

The Supreme Court expressed some interest in the case, requesting the state of Illinois to file a response to the appeal. Illinois Attorney General Lisa Madigan told the court that there were several procedural problems with the case that would make it a poor candidate for full review, including the fact that Dawn Sherman was no longer a public high school student in Illinois.

The justices declined without comment to hear the appeal in Sherman v. Koch (Case No. 10-1191).

In another establishment-clause case, the justices declined to hear the appeal of a Tennessee school district in a case in which three former school employees challenged the district's decision to outsource its alternative school to a private Christian program.

The question in Jefferson County Board of School Commissioners v. Smith (No. 10-1402) was whether the former principal and two former teachers, who lost their jobs when the public alternative school closed, had legal standing to sue over the decision to hire the Kingswood School, a private institution offering "a Christian environment of love and encourgagement."

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 11-4 earlier this year that the educators had standing as municipal taxpayers to challenge the school district's outsourcing plan on establishment-clause grounds.

Finally, in a special education case, the justices refused to take up the appeal on behalf of a South Dakota high school student with learning disabilities who was placed in an alternative school for 38 days without a formal hearing.

The student, identified in court papers as Jonathan Doe, was suspended for fighting and for possessing a pocket knife. His lawyers and other advocates contended that under the Individuals with Disabilities Education Act, Doe was entitled to a formal hearing for a change in placement that lasted longer than 10 days.

But a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled unanimously last year that the decision to place the student in an alternative program was made by his Individualized Education Plan (IEP) team and that the civil rights suit filed on his behalf amounted to a failure to exhaust administrative remedies under the IDEA. The school district made similar arguments in its brief in opposition to the appeal.

The justices declined without comment to to hear the appeal in Doe v. Todd County School District (No. 10-1411).

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