I think that public schools should be held to, if anything, a HIGHER
standard than the church. After all, children are REQUIRED to attend
public school; attending church is optional. But I also think that I
should be rich and famous. Still waiting for it to happen.
Lisa
On 6/15/2012 10:29 AM, Marci Hamilton wrote:
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
<mailto: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. ยง537.600; 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>
[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
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--
Lisa A. Runquist
Runquist& Associates
Attorneys at Law
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Northridge, CA 91325
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http://www.runquist.com
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