Shaming kindergarteners? Channeling Dred Scott? Freedom of expression rights in public schools

Catholic University Law Review

Volumn 56, Issue 2, 2007, Pages 361-403

  Hutchison, Harry G ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 34548321624     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (333)

1. Andy Crouch, The Phone Book Test, CHRISTIANITY TODAY, June 2006, at 44, 44 (interviewing Robert P. George). See generally ROBERT P. GEORGE, THE CLASH OF ORTHODOXIES: LAW, RELIGION, AND MORALITY IN CRISIS (2001). Consistent with George's Intuition, San Francisco, a city long considered a beacon of tolerance and inclusion, condemned 25,000 Christian teens rallying against pop culture's terrorism against virtue. Joe Garofoli, Christian Youth Rally in S.F., S.F. CHRON., Mar. 25, 2006, at A1. The demonstrators were, in the words of the resolution passed by the San Francisco Board of Supervisors, engaged in an '"act of provocation"' aimed at '"negatively influence[ing] the politics of America's most tolerant and progressive city."' Id.; see also Steven D. Smith, Conciliating Hatred, FIRST THINGS, June-July 2004, at 17,17-22.
2. James R. Stoner, Jr., Theology as Knowledge, FIRST THINGS, May 2006, at 21, 21.
3. Michael Jennings, Kentucky Asks What Year Is It?, CHRISTIANITY TODAY, May 31, 2006, http://www. christianitytoday.eom/ct/2006/mayweb-only/122-32.0.html.
4. Id.
5. Christian Legal Soc'y Chapter at S. III. Univ. Sch. of Law v. Walker, No. 05-4070-GPM, 2005 U.S. Dist. LEXIS 13881, at *1-4, *10 (S.D. III. July 5, 2005) (order denying preliminary injunction), rev'd, 453 F.3d 853 (7th Cir. 2006).
6. United States v. DeJesus, 347 F.3d 500, 510-11 (3d Cir. 2003).
7. Id. at 502; see also Robert T. Miller, A Jury of One's Godless Peers, FIRST THINGS, Mar. 2004, at 11, 12-13 (discussing the facts and meaning of the DeJesus case).
8. Miller, supra note 7, at 13.
9. Charles T. Rubin, The God Meme, NEW ATLANTIS, Spring 2006, at 71, 73-74 (reviewing DANIEL C. DENNETT, BREAKING THE SPELL: RELIGION AS A NATURAL PHENOMENON (2006)).
10. Id. at 75 (discussing Daniel Dennett's views).
11. See, e.g., CHRISTOPHER SHANNON, CRITICISM: TRADITION, THE INDIVIDUAL, AND CULTURE IN MODERN AMERICAN SOCIAL THOUGHT 65 (rev. ed., Univ. of Scranton Press 2006) (1996) (describing the new individualism and John Dewey's place in the new individualism pantheon).
12. See Wilfred McClay, Foreword to SHANNON, supra note 11, at viii.
13. John Finnis, Religion and State: Some Main Issues and Sources, 51 AM. J. JURIS. 107, 113-14 (2006).
14. See Rubin, supra note 9, at 74.
15. See Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 410 (1856) (describing the exclusion of members of the Negro race from the civilized world). Justice Taney took the view that even free blacks could not be citizens within the meaning of the United States Constitution. Id. at 418-19.
16. See Smith, supra note 1, at 17-18.
17. For a discussion of this possibility, see Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1558-60 (2004).
18. Id.; see also THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 889 (Kermit L. Hall et al. eds., 2d ed. 2005) [hereinafter OXFORD COMPANION].
19. See WILLIAM A. EDMUNDSON, AN INTRODUCTION TO RIGHTS 78 (2004) (discussing the Dred Scott decision).
20. See, e.g., Dred Scott, 60 U.S. at 454-455 (Wayne, J., concurring).
21. Stoner, supra note 2, at 21.
22. Id.
23. Id. But see Harry V. Jaffa, Original Intent and the American Soul, CLAREMONT REV. BOOKS, Winter 2005-2006, at 36, 36 ("The struggle for control of the Supreme Court is a profound political struggle, going to the heart of the meaning of our existence as a free people. For more than a half century, liberal judicial activism has been riding roughshod over the Constitution bequeathed to us by the founders.").
24. LARRY ALEXANDER, IS THERE A RIGHT OF FREEDOM OF EXPRESSION? 185-93 (2005) (explaining the process of muddling through with respect to freedom of expression concerns in a liberal society).
25. Id. at 180-81.
26. Stoner, supra note 2, at 21.
27. See Response of Hadley Arkes, Correspondence, CLAREMONT REV. BOOKS, Winter 2005-2006, at 4, 4 (suggesting that "human beings have reasoned about these matters of moral consequence... without appeals to faith and revelation" as a form of natural law and perhaps natural rights). It is also possible that today "bad natural rights teachings have all but forced out good natural rights teachings." Ralph A. Rossum, A More Dependable Approach, CLAREMONT REV. BOOKS, Winter 2005-2006, at 37, 37.
28. ALEXANDER, supra note 24, at 152 (noting that it may be impossible to make a convincing epistemological distinction between faith and reason).
29. For example, postmodernists contend that there is no such thing as truth "out there." See, e.g., RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 5 (1989); RICHARD RORTY, TRUTH AND PROGRESS: PHILOSOPHICAL PAPERS, VOLUME 3, at 20 (1998) [hereinafter RORTY, TRUTH AND PROGRESS] (raising the postmodern pragmatist possibility that "the difference between true beliefs considered as useful nonrepresentational mental states, and as accurate (and therefore useful) representations of reality, seemed a difference that could make no difference to practice"). But see J. BUDZISZEWSKI, WHAT WE CAN'T NOT KNOW 167 (2003) (noting that antifoundationalism may denote the contemporary manifestation of Sophism that appears to deny reality while resisting metanarratives that attempt to make sense out of life).
30. See RORTY, TRUTH AND PROGRESS, supra note 29, at 185 (suggesting that moral progress largely consists of sad and sentimental stories, which have as their objective, answering this question: "Why should I care about a stranger, a person who is no kin to me?" Evidently, the appropriate answer drives us toward inclusion as a value).
31. See Stanley Hauerwas, Theology as Knowledge, FIRST THINGS, May 2006, at 23, 23.
32. See Baldwinsville Cent. Sch. Dist. v. Peck, 126 S. Ct. 1880 (2006).
33. News Release, Liberty Counsel, U.S. Supreme Court Allows Decision to Stand That Says Pub. Sch. May Not Censor Religious Viewpoints of Students in Class Assignments (Apr. 24, 2006), http://lc.org/libertyalert/2006/la042406b. htm.
34. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 620-21 (2d Cir. 2005), cert. denied,-126 S. Ct. 1880 (2006).
35. Id. at 621-22.
36. Id. at 625-33.
37. Id. at 626-27.
38. Id. at 624-25 (noting "that further discovery might uncover a) evidence of animus or hostility by [Baldwinsville Central School District] toward Christianity or toward religion generally, and b) indications as to the accuracy of [the school district's] claim that Antonio's poster was not responsive to the assignment").
39. Id. at 620.
40. News Release, Liberty Counsel, supra note 33; see also Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc) (applying viewpoint neutrality standard to a nonpublic school forum); Searcey v. Harris, 888 F.2d 1314, 1324 (11th Cir. 1989) (disallowing viewpoint-based discrimination in a nonpublic forum).
41. News Release, Liberty Counsel, supra note 33; see also Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 926-29 (10th Cir. 2002) (allowing "educators to make viewpoint-based decisions about school-sponsored speech"); Ward v. Hickey, 996 F.2d 448, 450 (1st Cir. 1993) (affirming the district court's judgment sustaining a public school committee's decision to not reappoint a biology teacher who discussed abortion from her perspective in class).
42. See generally Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *8-9 (N.D.N.Y. Feb. 15, 2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
43. Stephen L. Carter, Liberal Hegemony and Religious Resistance: An Essay on Legal Theory, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT 25, 45-46 (Michael W. McConnell et al. eds., 2001).
44. This viewpoint may operate consistently with the conclusion that public schools should construct children for the benefit of the state. See id. at 50.
45. Simply put by Richard John Neuhaus, MacIntyre argues "that not only intellectuals but our popular culture has largely abandoned an understanding of moral truth and virtue, with the result that we are all dog-paddling in the murky sea of 'modern emotivism."' RICHARD JOHN NEUHAUS, CATHOLIC MATTERS: CONFUSION, CONTROVERSY, AND THE SPLENDOR OF TRUTH 145-46 (2006).
46. See George Weigel, Foreword to JOSEPH RATZINGER & MARCELLO PERA, WITHOUT ROOTS: THE WEST, RELATIVISM, CHRISTIANITY, ISLAM, at vii, vii (Michael F. Moore trans., 2006) (asking the question: "[I]s it possible to imagine anything properly called 'civilization' that lacks a sense of the sacred?").
47. See NEUHAUS, supra note 45, at 145-46.
48. Carter, supra note 43, at 31 ("If the state tries to domesticate religion, its most powerful competitor in the creation of meaning, then religion tries simultaneously to subvert the state.").
49. Id. at 34.
50. Id. (omission in original).
51. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 720 (1985).
52. Id. at 719.
53. Carter, supra note 43, at 35-36.
54. Id. at 36; see also Gregory C. Sisk, How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases, 76 U. COLO. L. REV. 1021, 1023-24 (2005) (noting that "adherents to traditionalist Christian faiths ... enter the courthouse doors at a distinct disadvantage").
55. See Ackerman, supra note 51, at 719.
56. Id. at 739.
57. OXFORD COMPANION, supra note 18, at 843.
58. Id.
59. Id. at 283.
60. Id. (citing Wallace v. Jaffree, 472 U.S. 38 (1985); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963)).
61. Id. (citing Edwards v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968)).
62. Id. (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).
63. One difficulty is what constitutes religion. Religion may mean a number of things including: "whatever constitutes a person's ultimate concern," "the presence of faith," or alternatively, as "a belief in extra-temporal consequences." Eduardo Peñalver, Note, The Concept of Religion, 107 YALE L.J. 791, 794 (1997) (internal quotation marks,and_citations omitted). Another difficulty concerns how religious liberty is to be protected. One view suggests "the establishment clause protects religious liberty; it safeguards much the same interests as the free exercise clause, but in a slightly different way. The free exercise clause defines the important individual liberty of religious freedom while the establishment addresses the limits of allowable state classification affecting this liberty." Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 313 (1986) (emphasis and footnote omitted).
64. Harry G. Hutchison, Liberal Hegemony? School Vouchers and the Future of the Race, 68 MO. L. REV. 559, 563 (2003). Justice O'Connor argues that the appropriate constitutional focus on divisiveness should ultimately concentrate "on the character of the government activity that might cause such divisiveness, not on the divisiveness itself." Lynch v. Donnelly, 465 U.S. 668,689 (1984) (O'Connor, J., concurring).
65. Hutchison, supra note 64, at 563; Martha Minow, Partners, Not Rivals?: Redrawing the Lines Between Public and Private, Non-Profit and Profit, and Secular and Religious, 80 B.U. L. REV. 1061, 1080 (2000) ("[M]any critical legal studies scholars and feminists targeted the public/private divide as an illusory and mystifying element of liberal legalism.").
66. See Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 18 (1947) ("[The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.").
67. Carter, supra note 43, at 53.
68. Id. at 50-51.
69. THOMAS SOWELL, THE VISION OF THE ANOINTED: SELF-CONGRATULATION AS A BASIS FOR SOCIAL POLICY 1 (1995).
70. See Ackerman, supra note 51, at 739.
71. See BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 139 (1980).
72. Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV. 131, 158 (1995).
73. ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 5 (1975).
74. Id.
75. See id.
76. Tinker v. Des Moines Indep. Cmty. Seh. Dist, 393 U.S. 503, 524 (1969) (Black, J., dissenting)
77. See id. at 516-17.
78. Id. at 517.
79. See Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J., concurring) (concentrating on whether the government's purpose can be seen as endorsing religion, and finding that a city display that included a crèche, among other symbols, was not intended to convey any message of endorsement of Christianity or disapproval of non-Christian religions). Instead of promoting religion, the city of Pawtucket aimed to celebrate the public holiday through traditional symbols. See id. As thus understood, government can neither endorse nor disapprove of religion because "[e]ndorsement sends a message to nonadherents [to a particular religion] that they are outsiders, not full members of the political community," whereas "[disapproval sends the opposite message" and excludes adherents from full political community. Id. at 688.
80. Tinker, 393 U.S. at 511.
81. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 102 (2001) (finding that the exclusion of an admittedly religious club from meeting after hours at a public school constitutes viewpoint discrimination violative of the club's free speech rights, and further ruling that permitting the club to meet does not violate the Establishment Clause).
82. Michael W. McConnell, Governments, Families, and Power: A Defense of Educational Choice, 31 CONN. L. REV. 847, 848 (1999) (citation omitted); see also Marci A. Hamilton, Power, The Establishment Clause, and Vouchers, 31 CONN. L. REV. 807, 811-12 (1999) (arguing that the fundamental purpose of the Establishment Clause is to prevent undue concentration of power).
83. McConnell, supra note 82, at 848.
84. Id. On one account, "[a]uthority here is to be controlled by public opinion, not public opinion by authority." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
85. See Good News Club, 533 U.S. at 106-07 (disallowing discrimination on the basis of viewpoint, but apparently allowing reasonable restrictions with respect to subject matter or content); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995).
86. See, e.g., Rosenberger, 515 U.S. at 834-35 (disallowing viewpoint discrimination in a public university funding controversy).
87. Id. at 829.
88. See, e.g., id. at 863-64 (Souter, J., dissenting).
89. OXFORD COMPANION, supra note 18, at 283 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)).
90. See generally ALEXANDER, supra note 24, at 152-54 (defining pure and impure liberalism).
91. Id. at 155.
92. Id. at 155-56.
93. OXFORD COMPANION, supra note 18, at 1023 (citing Tinker, 393 U.S. at 506).
94. Tinker, 393 U.S. at 506.
95. Id.
96. Hazelwood Seh. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) (first alteration in original) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986)).
97. Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *15 (N.D.N.Y. Feb. 15,2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
98. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985).
99. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).
100. Baldwinsville, 2000 U.S. Dist. LEXIS 13362, at *18.
101. Id.
102. Id. at *19.
103. Id. at *21.
104. Id. at *1-2.
105. Id. at *3.
106. Id. at *2. The plaintiff was asked to prepare a poster that would "enhance the student's understanding of his environment." Id. The posters were to be displayed on June 4, 1999, and the assignment required the children to use pictures or words "depicting ways to save our environment." Id.
107. Id. at *3.
108. Id. at *3-4.
109. Id. at *4.
110. Id.
111. Id. at *4-5.
112. Id. at *6.
113. See id. at *24-30; see also Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 620, 625 (2d Cir. 2005), cert. denied, 126 S. Ct. 1880 (2006).
114. Baldwinsville, 2000 U.S. Dist. LEXIS 13362, at *7.
115. Id.
116. See id. at *8.
117. Id. at *7-8.
118. See ALEXANDER, supra note 24, at xi-xii (explaining that Track Two laws and regulations are rules "that have 'message effects' but that are not enacted [or enforced] because of their message effects"). Alexander concludes that the scope of freedom of expression, if it exists at all, is confined to laws passed with the purpose of affecting messages. Id. at xi.
119. Id. at xi.
120. See, e.g., id.
121. See generally id. at 55-81. On one account, the taxonomy of Track One analysis apparently considers whether to allow government regulation of speech because it is harmful. Thus, "[w]hen receipt of a message is itself directly harmful, and government wishes to regulate the message for that reason, its regulations are either always or never violative of the right of freedom of expression," at least on a tentative basis. Id. at 80. As understood, it would be impossible for government "to carve out an intermediate position" because that would require that the government "weigh the value of the messages expressed against the disvalue of the harms they cause." Id. Further, "message evaluation by the government seems deeply inconsistent with any conception of freedom of expression." Id.
122. Id. at 9.
123. See Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *7-8 (N.D.N.Y. Feb. 15, 2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
124. Keep in mind that on one account, if content regulation becomes sufficiently egregious, it operates as a form of viewpoint discrimination. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
125. ALEXANDER, supra note 24, at 21 (emphasis added).
126. See id. at 20-21.
127. Id. at 20.
128. Baldwinsville, 2000 U.S. Dist. LEXIS 13362, at *8.
129. Id. at *8-9.
130. Id. at *9.
131. I am indebted to Professor Gregory Wallace for bringing this insight to my attention.
132. Smith, supra note 1, at 17.
133. ALEXANDER, supra note 24, at 168.
134. Id. at 148-49.
135. Id. at 149.
136. Id. My debt to Alexander should be obvious.
137. See id. at 168.
138. Smith, supra note 1, at 17.
139. Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *9 (N.D.N.Y. Feb. 15, 2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
140. See THOMAS NAGEL, EQUALITY AND PARTIALITY 161-64 (1991).
141. ALEXANDER, supra note 24, at 156.
142. Id.
143. Id. at 156-60 (showing, among other things, that from the perspective of the believer whose norms are at risk, none of her norms can be reasonably rejected; or alternalively, if one argues that the believers norms are only accessible to her and inaccessible to others because she alone has had a unique experience or life, then this focus rules out the imposition of any norms whose rejection is understandable in this way).
144. Id. at 150.
145. Cf. Erwin Chemerinsky, Remarks at Campbell University Law School, The Federalist Society's Student Division Panel: God and Government 3 (Fall 2005).
146. Id.
147. ALEXANDER, supra note 24, at 150 (emphasis added); see also NANCY R. PEARCEY, TOTAL TRUTH: LIBERATING CHRISTIANITY FROM ITS CULTURAL CAPTIVITY 2U-22 (2004) (discussing attempts to exclude religious viewpoints through so-called fact/value distinctions).
148. See, e.g., J. JUDD OWEN, RELIGION AND THE DEMISE OF LIBERAL RATIONALISM: THE FOUNDATIONAL CRISIS OF THE SEPARATION OF CHURCH AND STATE 48-51 (2001) (discussing Richard Rorty's repudiation of epistemology); see also Paul J. Griffiths, Offer Declined, FIRST THINGS, June-July 2005, at 38, 40 (reviewing RICHARD RORTY & GIANNI VATTIMO, THE FUTURE OF RELIGION (2005)) (noting that in no sense should Rorty be understood to make philosophical claims as traditionally understood). Instead, Griffiths finds that Rorty can best be understood as one who identifies a "whole vocabulary-that of truth, reality, objectivity, universality"-which is simply refused. Id. Griffiths further contends: "Refusal is not denial. It is, instead, the abandonment of one lexicon and the deployment of another.... To refute or rebut would still be to practice philosophy, and this Rorty... do[es] not wish to do." Id.
149. ALEXANDER, supra note 24, at 152.
150. Id. at 164.
151. Id.
152. Id. at 150.
153. Id. In Alexander's view, those who object to the religion of secularism should welcome this identification instead of being disturbed by this development. Id.
154. Theodore M. Greene, Introduction to IMMANUEL KANT, RELIGION WITHIN THE LIMITS OF REASON ALONE, at ix (Theodore M. Greene & Hoyt H. Hudson trans., Harper & Row 1960) (1934).
155. On this possibility, see KANT, supra note 154, at 151 ("Every one can convince himself, through his own reason, of the evil which lies in human hearts and from which no one is free; of the impossibility of ever holding himself to be justified before God through his own life-conduct, and, at the same time, of the necessity for such a justification valid in His eyes ....").
156. Finnis, supra note 13, at 107-10.
157. Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *20 (N.D.N.Y. Feb. 15, 2000) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)), vacated, 7 F. App'x 74 (2d Cir. 2001).
158. See id. at *7-11.
159. Id. at *10.
160. Id.
161. Id.
162. Id.
163. Id.
164. Id.
165. See Carter, supra note 43, at 36.
166. Gregory Wallace, Remarks at Campbell University Law School, The Federalist Society's Student Division Panel: God and Government 17-18 (Fall 2005).
167. See id.
168. ALEXANDER, supra note 24, at 165.
169. Finnis, supra note 13, at 111-12 (citation omitted).
170. ACKERMAN, supra note 71, at 139.
171. NEUHAUS, supra note 45, at 66.
172. ALEXANDER, supra note 24, at 164.
173. Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *13 (N.D.N.Y. Feb. 15,2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
174. Id. at *22-24 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988)).
175. Id. at *26-28.
176. Id. at *28-29.
177. Id. at *29.
178. Id. at *30.
179. Id. at *18.
180. Id.
181. Peck v. Baldwinsville Sch. Bd. of Educ., 7 F. App'x 74,75 (2d Cir. 2001).
182. Id. at 75-76.
183. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 630 (2d Cir. 2005), cert. denied, 126 S. Ct. 1880 (2006).
184. Carter, supra note 43, at 50.
185. NEUHAUS, supra note 45, at 153. My debt to Richard John Neuhaus should be obvious.
186. Peck v. Baldwinsville Cent. Sch. Dist., No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *18 (N.D.N.Y. Feb. 15,2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
187. Id.
188. Id.
189. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 627 (2d Cir. 2005), cert. denied, 126 S. Ct. 1880 (2006).
190. Id. at 628 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,271 (1988)).
191. Id. (quoting Hazelwood, 484 U.S. at 273).
192. For one view of public schools as a form of liberal hegemony, see Hutchison, supra note 64, at 577-90.
193. See Baldwinsville, 426 F.3d at 630.
194. Cf. id.
195. See ALEXANDER, supra note 24, at 155-56.
196. Baldwinsville, 426 F.3d at 630.
197. Id. (emphasis omitted).
198. See id. at 631; Peck v. Baldwinsville Cent. Sch. Dist, No. 99-CV-1847, 2000 U.S. Dist. LEXIS 13362, at *20-24 (N.D.N.Y. Feb. 15, 2000), vacated, 7 F. App'x 74 (2d Cir. 2001).
199. Baldwinsville, 426 F.3d at 631 (emphasis omitted).
200. Id. at 632 n.9.
201. Id. at 633 (quoting Searcey v. Harris, 888 F.2d 1314,1325 (11th Cir. 1989)).
202. Id.
203. Id.
204. Id. at 633 & n.11.
205. ALEXANDER, supra note 24, at 55-56.
206. See generally Baldwinsville, 426 F.3d at 629-33.
207. ALEXANDER, supra note 24, at 178 (quoting STANLEY FISH, THERE'S NO SUCH THING AS FREE SPEECH, AND IT'S A GOOD THING, TOO (1994)).
208. Id.
209. Id.
210. Id. at 168.
211. Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J., concurring) ("What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.").
212. See ALEXANDER, supra note 24, at 165-70 (emphasis omitted).
213. Id. at 169.
214. Id.
215. SHANNON, supra note 11, at 203.
216. See Harry G. Hutchison, A Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment Values, 14 WM. & MARY BILL RTS. J. 1309, 1343 (2006).
217. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
218. TERRY EAGLETON, THE IDEA OF CULTURE 112 (2000) (quoting T.S. ELIOT, NOTES TOWARDS THE DEFINITION OF CULTURE 120 (1948)).
219. BUDZISZEWSKI, supra note 29, at 6-7.
220. ALEXANDER, supra note 24, at 170.
221. Id.
222. See, e.g., Hutchison, supra note 216, at 1331-39 (discussing solidarity in the mirror of growing postmodernism).
223. CHANDRAN KUKATHAS, THE FRATERNAL CONCEIT: INDIVIDUALIST VERSUS COLLECTIVIST IDEAS OF COMMUNITY 2 (1991).
224. SHANNON, supra note 11, at 147.
225. Id.
226. Id. at 146.
227. Id. at 146-47.
228. PHILLIP E. JOHNSON, THE RIGHT QUESTIONS: TRUTH, MEANING & PUBLIC DEBATE 165 (2002) (quoting Edward Skidelsky, A Liberal Tragedy, PROSPECT, Jan. 2002).
229. Hutchison, supra note 64, at 643-44 (discussing the centralizing impulse that is connected to the common school movement).
230. ALEXANDER, supra note 24, at 171.
231. SHANNON, supra note 11, at 202.
232. ALEXANDER, supra note 24, at 170.
233. See Smith, supra note 1, at 19 (describing the Supreme Court deployment of the "evil motives" strategy to silence those it opposes).
234. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865-66 (1992).
235. Id. at 867.
236. Smith, supra note 1, at 18 (discussing the Court's political compromises in the affirmative action arena).
237. See id. at 20 (discussing Romer v. Evans, 517 U.S. 620 (1996)).
238. See id.
239. JOHN GRAY, POST-LIBERALISM: STUDIES IN POLITICAL THOUGHT 4 (1993).
240. Hutchison, supra note 64, at 564.
241. See, e.g., Robert K. Vischer, The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism 1-2 (Univ. of St. Thomas Sch. of Law, Legal Studies Research Paper Series, Working Paper No. 06-21, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899381.
242. MARTIN LOUGHLIN, SWORD AND SCALES: AN EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND POLITICS 5 (2000).
243. Vischer, supra note 241, at 1.
244. Id.
245. See id. at 2. See generally Williams v. Vidmar, 367 F. Supp. 2d 1265 (N.D. Cal. 2005) (involving a case where a teacher unsuccessfully sued a school district for discrimination because the school screened his curriculum for any inappropriate religious content).
246. Vischer, supra note 241, at 3 ("If teachers and students are understood to operate within a monolithic, unitary educational system, their claims to be empowered legally to act (or not act) on conscience in the face of conflicting normative claims by the system are not to be dismissed lightly.").
247. Trinity W. Univ. v. B.C. Coll. of Teachers, No. 27168, 2001 Can. Sup. Ct. LEXIS 32, at *22-27 (Can. 2001). In Trinity Western University, British Columbia College of Teachers (BCCT) refused Trinity Western's application "to assume full responsibility for [its] teacher education program" because the college required all students, faculty and staff to refrain from engaging in all forms of sexual practices that are biblically condemned including, but not limited to, homosexual conduct. Id. at *22-25. Agreeing to refrain from engaging in non-biblical sexual practices was seen by the BCCT, the appropriate jurisdictional unit, as discrimination against homosexuals. Id. at *25-27. The Supreme Court of Canada decided that the BCCT's approach went too far. Id. at *66-72.
248. See id. at *66-71.
249. Robert F. Nagel, Lies and Law, 22 HARV. J.L. & PUB. POL'Y 605, 616 (1999).
250. GRAY, supra note 239, at 4.
251. OWEN, supra note 148, at 1. It is possible that: [L]iberal institutions concerning religion-the separation of church and state, religious pluralism, religious freedom-were originally justified on the basis of a revolutionary comprehensive philosophic doctrine, covering human nature, the purpose of political society, and the proper domain of religious faith.... Today, belief in the comprehensive philosophic teaching of the Enlightenment appears to lie in ruins .... Id.
252. Id.
253. See, e.g., Smith, supra note 1, at 17-18.
254. Nagel, supra note 249, at 606-07.
255. Id. at 609.
256. Smith, supra note 1, at 18.
257. Id.
258. Id. at 17.
259. Id.
260. See Zelman v. Simmons-Harris, 536 U.S. 639, 686 (2002) (Stevens, J., dissenting).
261. For a discussion of the dissenting Justices' failings, see Hutchison, supra note 64, at 622-30.
262. Id. at 623 (second alteration in original) (quoting Charles Taylor, Religion in a Free Society, in ARTICLES OF FAITH, ARTICLES OF PEACE: THE RELIGIOUS LIBERTY CLAUSE AND THE AMERICAN PUBLIC PHILOSOPHY 93, 94 (James Davidson Hunter & Os Guinness eds., 1990)).
263. Id. at 624 (quoting Carter, supra note 43, at 52).
264. Carter, supra note 43, at 52.
265. See Lund & McGinnis, supra note 17, at 1584-85 (discussing the Supreme Court's willingness to rule out-of-bound different moral judgment without providing any constitutional justification).
266. ALASDAIR MACINTYRE, AFTER VIRTUE 226 (1981).
267. Cf. id.
268. Finnis, supra note 13, at 112 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864 (1992)).
269. Id.
270. Id.
271. One possible reason for judicial discomfort is suggested by Stephen Carter. The deployment of religious language in public debates provides something more than cacophony-it provides, at times, a basis for prevailing in such debates. Indeed, "Charles Taylor argues that liberal uneasiness with strong religious commitments rests in large measure upon this historical truth." Carter, supra note 43, at 38.
272. STEPHEN ARONS, COMPELLING BELIEF: THE CULTURE OF AMERICAN SCHOOLING, at vii (1983).
273. Smith, supra note 1, at 18.
274. Casey, 505 U.S. at 864.
275. Id. at 868.
276. Evidently Dred Scott is "the leading precedent for [such] self-portrayal[s]." Smith, supra note 1, at 18. "[T]he Supreme Court... attempted to call the contending sides of a national controversy to end their national division.... Four years later the nation was engaged in a civil war." Id.
277. Id. (citations omitted).
278. Id. at 17.
279. Id.
280. Wallace, supra note 166, at 47 (quoting a judge who had just invalidated the Pledge of Allegiance).
281. Bernard Yack, Introduction to LIBERALISM WITHOUT ILLUSIONS 1, 2 (Bernard Yack ed., 1996) (discussing the "liberalism of fear" that is "reinforced by the extraordinary violence and irrationality of politics in twentieth-century Europe").
282. Michael Walzer, On Negative Politics, in LIBERALISM WITHOUT ILLUSIONS, supra note 281, at 17,17 (discussing Judith Shklar's politics).
283. Smith, supra note 1, at 19.
284. See id, at 18.
285. Yack, supra note 281, at 8.
286. Id. at 8-9; see also Nagel, supra note 249, at 610-11 (describing the Yale argument used in constitutional adjudication as an exercise in superior effort, skill, or intelligence leading to a claim of authority from effort). For instance, members of the philosophical elites, such as Ronald Dworkin, present themselves as "having thought harder than the Pope about Catholic theology." Id. at 610.
287. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687-94 (O'Connor, J., concurring). In particular, Justice O'Connor concentrates on whether a challenged government practice contributes to political divisiveness, but concludes that the Supreme Court has "never relied on divisiveness as an independent ground for holding & a government practice unconstitutional, " but then goes on to assert that "the constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness itself." Id. at 689. Ultimately, Justice O'Connor asserts, "[w]hat is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community." Id. at 692.
288. See Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 669 (1970); see also Locke v. Davey, 540 U.S. 712, 725 (2004) ("If any room exists between the two Religion Clauses, it must be here.").
289. See Chess v. Widmar, 480 F. Supp. 907, 918 (W.D. Mo. 1979), remanded, 635 F.2d 1310 (8th Cir. 1980), aff' d sub. nom. Widmar v. Vincent, 454 U.S. 263 (1981).
290. Locke, 540 U.S. at 730 (Scalia, J., dissenting).
291. In assessing human subjects, it is possible that the terms of any debate concerning religious liberty are set, as philosopher Daniel Dennett clarifies by the "Brights" (including the courts), while concurrently diminishing the worth of the "Dims" (the others). On this point, see Crouch, supra note 1, at 46 (interviewing Robert George).
292. CHANTAL DELSOL, ICARUS FALLEN: THE SEARCH FOR MEANING IN AN UNCERTAIN WORLD 54 (Robin Dick trans., 2003).
293. Nagel, supra note 249, at 611.
294. Id. at 606.
295. Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1871).
296. See, e.g., Michael J. Sandel, Freedom of Conscience or Freedom of Choice?, in ARTICLES OF FAITH, ARTICLES OF PEACE: THE RELIGIOUS LIBERTY CLAUSES AND THE AMERICAN PUBLIC PHILOSOPHY, supra note 262, at 74, 74-92 (assessing liberal theory); see also PEARCEY, supra note 147, at 99 (discussing dualism and how it "became secularized, producing the modern dichotomies between public and private, fact and value").
297. See generally Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (reversing, for the second time, the Second Circuit on the same issue (a weakly distinguishable exclusion from school), despite the fact that the Supreme Court had reversed the Second Circuit in an earlier case, Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)). See ANN COULTER, GODLESS: THE CHURCH OF LIBERALISM 11-12 (2006).
298. See, e.g., Emily Sherwin, Ducking Dred Scott: A Response to Alexander and Schauer, 15 CONST. COMMENT. 65, 65 (1998).
299. Id.
300. Id. (describing Alexander's and Schauer's claims).
301. Confusion is no doubt enhanced by the failure of the courts to distinguish clearly whether they are considering Free Exercise Clause or Establishment Clause issues. See Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues, 67 B.U. L. REV. 603, 608 n.18 (1987). Disputed points include the contention that secularism is the religion that public schools tend to promote in violation of the Establishment Clause. Id. at 608. Another point of contention involves the claim that the law, lawyers, and judges have been given over to secularistic ideology. Id. at 607; see also Torcaso v. Watkins, 376 U.S. 488,495 n.11 (1961) ("Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.").
302. One source of confusion arises because the concept of "[t]he separation of church and state remains" even though its justification may remain insecure in light of "the demise of liberal rationalism.7quot; OWEN, supra note 148, at 1.
303. Mitchell, supra note 301, at 605-06 (emphasis omitted).
304. Id. at 608 (quoting Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963)).
305. See, e.g., Locke v. Davey, 540 U.S. 712,733 (2004) (Scalia, J., dissenting).
306. Id.
307. See generally JAY P. GREENE WITH GREG FORSTER & MARCUS A. WINTERS, EDUCATION MYTHS: WHAT SPECIAL INTEREST GROUPS WANT YOU TO BELIEVE ABOUT OUR SCHOOLS - AND WHY IT ISN'T SO 95-96 (2005) (describing the evidence showing that far fewer students graduate from high school than many in the public believe); see also Adam Meyerson, Foreword to SAMUEL CASEY CARTER, NO EXCUSES: LESSONS FROM 21 HIGH-PERFORMING, HIGH-POVERTY SCHOOLS 1, 1 (2000) ("Fifty-eight percent of low-income 4th graders cannot read, and 61 percent of low-income 8th graders cannot do basic math.").
308. Locke, 540 U.S. at 734 (Scalia, J., dissenting).
309. OWEN, supra note 148, at 166.
310. Id. (emphasis omitted).
311. Id.
312. Id.
313. Id. at 168.
314. Id. at 169.
315. Nagel, supra note 249, at 615.
316. Id.
317. ALEXANDER, supra note 24, at 148.
318. Id.
319. Id.
320. OWEN, supra note 148, at 166.
321. Id.
322. Id.
323. Joseph M. Knippenberg, Liberalism and Religion: The Case of Kant, 30 POL. SCI. REVIEWER 58 (2001) (citations omitted).
324. Id.
325. OWEN, supra note 148, at 2. It is not obvious that Owen fully accepts the claim that liberalism rests on faith. See generally id. at 2-14.
326. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992).
327. Id. at 844.
328. MICHAEL WALZER, ON TOLERATION 79 (1997).
329. Carter, supra note 43, at 48.
330. Id. at 53. Understood this way, society's central culture (bureaucratic or liberal individualism) aims to marginalize those groups and individuals who affirm the tradition of virtues. See MACINTYRE, supra note 266, at 223-24.
331. Carter, supra note 43, at 50.
332. Lund & McGinnis, supra note 17, at 1589 (discussing this concept of constitutional adjudication).
333. Nagel, supra note 249, at 615.