Public schools should also be held to the same standard as any private institution and it should be child-protective
Marci On Jun 15, 2012, at 11:04 AM, "Douglas Laycock" <dlayc...@virginia.edu> wrote: > It is not just other constitutional interests that limit liability for harm > to children. It is also other public policies. > > For example, in Missouri, where Gibson v. Brewer limits the church’s > liability to cases where they knew about abuse and failed to act, public > schools have no state-law liability at all in sex abuse cases. See Mo. Stat. > §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special > School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no > federal liability unless an official with authority to act had “actual > knowledge” and made “an official decision” not to do anything. Gebser v. Lago > Vista Independent School District, 524 U.S. 274, 290 (1998). > > The should-have-known liability now imposed on churches in many states, and > the should-have-known-there-was-an-elevated-risk liability that is often > alleged and sometimes imposed, goes far beyond the liability rules applicable > to most public schools. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark > Sent: Friday, June 15, 2012 9:46 AM > To: Law & Religion issues for Law Academics > Subject: RE: Religious exemptions in ND > > May I suggest this is too strong. A great many constitutional rights > increase to some degree the possibility that child abuse will occur, not be > detected and not be adequately punished. Consider in this respect the Fourth > and Fifth Amendments, at least as presently interpreted (and I suspect most > of us would not agree with an interpretive rule that said government does not > violate the Fourth and Fifth Amendment whenever doing so might increase to > any degree the possibility that a crime will not be committed, not be > detected, and not be punished. So we might assume that a) protections for > religious freedom will have some negative consequences, including some severe > negative consequences but b) that this is true for pretty much all > constitutional rights. > > So the issue is how much do we risk because we value religious freedom > (remembering that a strategy of risk nothing will have other severe bad > consequences. > > In this vein, may I suggest that the present alternatives are not helpful. > SMITH seems to suggest a rational basis test that would allow government to > severely burden religious practice whenever doing so has any appreciable > tendency to prevent, detect, or punish crime. Many RFRAs suggest a > compelling interest test that probably puts too high a burden on government > to do a variety of acts (not just in the area of criminal justice—so even if > you think, as I do, that preventing child abuse is obviously a compelling > government interest, you might still think the compelling interest standard > too strong in other cases). > > Strikes me that one thing we might discuss is what that in-between standard > looks like. > > Mark A. Graber > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
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