Re: The Original Message: UC system sued
Gene Summerlin wrote: Ed, The issue, from a constitutional standpoint, is not whether you can point out a way which a state university could evaluate certain literature, history or other classes and reject them as not meeting their requirements. I don't think anyone disagrees that this is possible. The question that may be raised by the UC case is whether the university evaluated the curriculum from the Christian high schools in a non-discriminatory fashion. For example, suppose Private High A offers history classes with an emphasis on how race affected US history and that UC deems that class acceptable. Can the university then reject a similar history class that emphasizes how religion affected US history. When the State adopts a general rule, but then carves out secular exceptions to that general rule, the State cannot deny similar exceptions to those that seek an exception for religious reasons. I believe that is the point that Jim was making when he discussed state actors operating with unbridled discretion. As the UC litigation moves forward, I suspect that we will learn more about what standards UC applied in determining what courses were acceptable and which were not, but until we know the facts, all we can do is speculate as to the possible results. But that is exactly my point, Gene. No one would seriously suggest that universities don't have a right, if not an obligation, to set standards for the acceptance of credit for courses in secondary schools. No one would seriously suggest that every time a university rejects a course it is merely a result of bias or bigotry rather than the result of the course simply not meeting a reasonable standard. So it seems to me that the question here is not whether universities have the authority to set such standards, but whether such standards are being objectively applied in a legal and reasonable fashion in regard to these particular courses. Now in this particular situation, none of us on this list, presumably, have seen the courses in question with the exception of portions of the science textbook that is being rejected (I've now seen 3 chapters of it, and hope to have the rest of it in the next couple days). In the case of that specific class, I will say without reservation that no university should accept it as credit in a science class. The perspective offered is bluntly anti-scientific and argues strongly that the findings of science, where they disagree with a particular interpretation of the Bible, are automatically and inevitably false, regardless of what the evidence might indicate. This is as antithetical to good science education as it is possible to imagine. In addition, the textbook teaches a young earth, global flood perspective that has been thoroughly and emphatically falsified for well over a century. Despite the fact that no one else on this list, as far as I know, has actually seen any of the specifics of any of the other textbooks that have been rejected, we still have certain people engaging in conclusionary and inflated rhetoric without justification. The UC system has been accused of "standardless, unbridled discretion" by someone who, by all indications, hasn't had any access to either the textbooks or curricula in question, or to the UC's analysis of that curricula (and if Jim has had access to those things, I stand corrected, but nothing to this point indicates that he has seen any of it whatsoever). We have accusations that the UC is engaged in systematic discrimination against Christians, that they are in effect posting a "no conservative Christians allowed" sign on the door and that the UC system "excludes children who graduate from Christian high schools." None of that conclusionary rhetoric can possibly be justified without having examined the curricula in question and the UC's analysis of them and justification for rejecting them. In the one instance here in which there is at least partial evidence to go on, I submit that it strongly supports the UC's position that the course does not measure up and their rejection of it is entirely reasonable by any objective standard. Ed Brayton No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05 ___ 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.
RE: The Original Message: UC system sued
Ed, The issue, from a constitutional standpoint, is not whether you can point out a way which a state university could evaluate certain literature, history or other classes and reject them as not meeting their requirements. I don't think anyone disagrees that this is possible. The question that may be raised by the UC case is whether the university evaluated the curriculum from the Christian high schools in a non-discriminatory fashion. For example, suppose Private High A offers history classes with an emphasis on how race affected US history and that UC deems that class acceptable. Can the university then reject a similar history class that emphasizes how religion affected US history. When the State adopts a general rule, but then carves out secular exceptions to that general rule, the State cannot deny similar exceptions to those that seek an exception for religious reasons. I believe that is the point that Jim was making when he discussed state actors operating with unbridled discretion. As the UC litigation moves forward, I suspect that we will learn more about what standards UC applied in determining what courses were acceptable and which were not, but until we know the facts, all we can do is speculate as to the possible results. Gene SummerlinOgborn, Summerlin & Ogborn, P.C.210 Windsor Place330 South Tenth StreetLincoln, NE 68508(402) 434-8040(402) 434-8044 (facsimile)(402) 730-5344 (mobile)[EMAIL PROTECTED]www.osolaw.com From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Monday, August 29, 2005 9:58 PMTo: Law & Religion issues for Law AcademicsSubject: Re: The Original Message: UC system sued [EMAIL PROTECTED] wrote: But Art, I specifically eschewed the discussion on the science courses because the facts reported in the sources cited by Ed indicated the denial of accreditation for literature, history and civics courses. So I could get to the nub of his inquiry about legal bases for litigation via other avenues then the contentious ID/evolution grounds. And that's precisely what my posts show. From your response, I am wondering if the notion that the other kinds of courses were also subjected to disapproval troubles you in some way because you have, like Ed, recurred to the science issue.But I've already pointed out ways in which schools could evaluate the pedagogical value of literature, history and civics courses, with no response to the substance of my argument at all. Are you taking the position that any course in history, civics or literature would be equally valid as a matter of pedagogy than any other merely because evaluation of such courses is more difficult or subjective than in science? Or that no university could possibly have legitimate grounds for rejecting a course in those fields? If so, please say so. If not, then we at least should be able to agree that some courses in those areas could legitimately be rejected for credit during the admissions process. Then we must move on to the question of whether these particular courses meet some reasonable criteria for either acceptance or rejection. But since neither of us, I presume, has seen the curriculum in any of the other classes, that will be difficult to do. However, given that I have seen large portions of the textbook from the science class that is being rejected and can say unequivocally that there is not only good reason to reject it but it would be foolhardy to accept it, I think it's reasonable to give the UC system the benefit of the doubt and think that they probably have equally good reason to reject the other courses. At the very least, it's vastly premature to go off into flights of fanciful rhetoric about the UC system refusing to accept Christian students, or the like. The evidence simply does not support such rhetoric at this point.Ed Brayton ___ 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.
Re: The Original Message: UC system sued
[EMAIL PROTECTED] wrote: But Art, I specifically eschewed the discussion on the science courses because the facts reported in the sources cited by Ed indicated the denial of accreditation for literature, history and civics courses. So I could get to the nub of his inquiry about legal bases for litigation via other avenues then the contentious ID/evolution grounds. And that's precisely what my posts show. From your response, I am wondering if the notion that the other kinds of courses were also subjected to disapproval troubles you in some way because you have, like Ed, recurred to the science issue. But I've already pointed out ways in which schools could evaluate the pedagogical value of literature, history and civics courses, with no response to the substance of my argument at all. Are you taking the position that any course in history, civics or literature would be equally valid as a matter of pedagogy than any other merely because evaluation of such courses is more difficult or subjective than in science? Or that no university could possibly have legitimate grounds for rejecting a course in those fields? If so, please say so. If not, then we at least should be able to agree that some courses in those areas could legitimately be rejected for credit during the admissions process. Then we must move on to the question of whether these particular courses meet some reasonable criteria for either acceptance or rejection. But since neither of us, I presume, has seen the curriculum in any of the other classes, that will be difficult to do. However, given that I have seen large portions of the textbook from the science class that is being rejected and can say unequivocally that there is not only good reason to reject it but it would be foolhardy to accept it, I think it's reasonable to give the UC system the benefit of the doubt and think that they probably have equally good reason to reject the other courses. At the very least, it's vastly premature to go off into flights of fanciful rhetoric about the UC system refusing to accept Christian students, or the like. The evidence simply does not support such rhetoric at this point. Ed Brayton No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05 ___ 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.
Re: The Original Message: UC system sued
In a message regarding "standardless, unbridled discretion," Jim Henderson writes: But Art, I specifically eschewed the discussion on the science courses because the facts reported in the sources cited by Ed indicated the denial of accreditation for literature, history and civics courses. So I could get to the nub of his inquiry about legal bases for litigation via other avenues then the contentious ID/evolution grounds. And that's precisely what my posts show. Apparently I didn't read your posts closely enough. Sorry. From your response, I am wondering if the notion that the other kinds of courses were also subjected to disapproval troubles you in some way because you have, like Ed, recurred to the science issue. I agree that there's more subjectivity involved in fashioning academic standards for courses in literature, history and civics than for courses in science and math. But that doesn't mean that academic stadards for courses in literature, history and civics necessarily involve "standardless, unbridled discretion." Of course you could construct a hypothetical in which a state college acted arbitrarily and unconstitutionally in denying credit for a high school course. You and I might both be eager to take the case in which Benighted State College had denied credit for a rigorous high school literature course simply because the curriculum included books with a religious (C.S. Lewis) or atheist (Bertrand Russell) perspective. But if we're talking about the UC system, I take it you have no more of a factual basis than I do to believe that what's actually going on involves "standardless, unbridled discretion" rather than the reasonable application of legitimate academic standards. Art Spitzer ___ 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.
RE: "Bloodsucking circumcision"
Title: RE: "Bloodsucking circumcision" This article from the Forward http://www.forward.com/articles/3871 reports (1) the difficulty with the testing alternative because (it claims) 90% of the population carries the antibody for herpes; (2) that a temporary restraining order against the mohel who is suspected of spreading herpes has been entered by consent; and (3) the whole matter has become politicized in the upcoming New York City mayoral race. Of course, isn't this politicization exactly which the majority in Smith thought would happen, and thought was a good idea? *Howard M. Friedman Disting. Univ. Professor EmeritusUniversity of Toledo College of LawToledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: [EMAIL PROTECTED] * From: [EMAIL PROTECTED] on behalf of Gene SummerlinSent: Mon 8/29/2005 8:42 PMTo: Law & Religion issues for Law AcademicsSubject: RE: "Bloodsucking circumcision" In response to Eugene's question, wouldn't a law banning oral suction besubject to the compelling interest test as a hybrid rights case underSmith? That is, such a law would implicate the parent's free exerciserights as well as their parental rights to direct the care and nurtureof their children. My recollection is that footnote one in the Smithopinion specifically points to free exercise plus parental rights as anexample of a hybrid claim, and the Troxel court identifies "the libertyinterest . . . of parents in the care, custody, and control of theirchildren [as] perhaps the oldest of the fundamental liberty interestsrecognized by [the] Court." Even assuming the State had a compellinginterest in banning oral suction, a complete ban - as opposed to, say,testing of Rabbis to insure they didn't have Herpes 1 - would appear tofail the narrowly tailored requirement.Gene SummerlinOgborn, Summerlin & Ogborn, P.C.210 Windsor Place330 South Tenth StreetLincoln, NE 68508(402) 434-8040(402) 434-8044 (facsimile)(402) 730-5344 (mobile)[EMAIL PROTECTED]www.osolaw.com ___ 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.
RE: "Bloodsucking circumcision"
In response to Eugene's question, wouldn't a law banning oral suction be subject to the compelling interest test as a hybrid rights case under Smith? That is, such a law would implicate the parent's free exercise rights as well as their parental rights to direct the care and nurture of their children. My recollection is that footnote one in the Smith opinion specifically points to free exercise plus parental rights as an example of a hybrid claim, and the Troxel court identifies "the liberty interest . . . of parents in the care, custody, and control of their children [as] perhaps the oldest of the fundamental liberty interests recognized by [the] Court." Even assuming the State had a compelling interest in banning oral suction, a complete ban - as opposed to, say, testing of Rabbis to insure they didn't have Herpes 1 - would appear to fail the narrowly tailored requirement. Gene Summerlin Ogborn, Summerlin & Ogborn, P.C. 210 Windsor Place 330 South Tenth Street Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (facsimile) (402) 730-5344 (mobile) [EMAIL PROTECTED] www.osolaw.com -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, August 29, 2005 5:59 PM To: Law & Religion issues for Law Academics Subject: "Bloodsucking circumcision" That's the headline Slate gave this story, and it's surprisingly accurate. According to this New York Times article, http://www.nytimes.com/2005/08/26/nyregion/26circumcise.html?adxnnl=1&ad xnnlx=1125344508-1l0XYEAQaD0o+O4NL+m3Fw, A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice. The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . . The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it. It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . . The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . . "[T]he most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision," and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible). . . . "The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change." Any thoughts on whether a ban on such oral suction would be proper (assuming that it does indeed pose a danger, though not a vast danger)? Would it be constitutional, if the New York Constitution is interpreted as providing for a Sherbert/Yoder compelled exemption regime (a matter that's currently unsettled)? Eugene ___ 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. ___ 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.
Re: The Original Message: UC system sued
In a message dated 8/29/2005 7:06:40 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: In a message dated 8/29/05 4:52:39 PM, Jim Henderson writes: Art finds "standardless, unbridled discretion" discussions to have little to do with the real world ...No, that's not what I was trying to say. I think many First Amendment cases can still be won -- some by me, I hope -- because the government is engaged in "standardless, unbridled discretion." What I was trying to say was that Jim's assertion that the UC system was engaged in "standardless, unbridled discretion" when it refused to accept credits from, e.g., a science course that used a young earthcreationist textbook, had "little to do with the real world." In other words, it seems to me that the rejection of credits from such a course is a clear example of *applying* reasonable and relevant academic standards, not the absence of standards. (I suppose it's possible that discovery will reveal that the UC system decides which high school courses to accept and which not to accept in an arbitrary and irrational way, but that seems to me quite unlikely.) But Art, I specifically eschewed the discussion on the science courses because the facts reported in the sources cited by Ed indicated the denial of accreditation for literature, history and civics courses. So I could get to the nub of his inquiry about legal bases for litigation via other avenues then the contentious ID/evolution grounds. And that's precisely what my posts show. From your response, I am wondering if the notion that the other kinds of courses were also subjected to disapproval troubles you in some way because you have, like Ed, recurred to the science issue. Jim Henderson Senior Counsel ACLJ ___ 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.
Re: The Original Message: UC system sued
In a message dated 8/29/05 4:52:39 PM, Jim Henderson writes: Art finds "standardless, unbridled discretion" discussions to have little to do with the real world ... No, that's not what I was trying to say. I think many First Amendment cases can still be won -- some by me, I hope -- because the government is engaged in "standardless, unbridled discretion." What I was trying to say was that Jim's assertion that the UC system was engaged in "standardless, unbridled discretion" when it refused to accept credits from, e.g., a science course that used a young earth creationist textbook, had "little to do with the real world." In other words, it seems to me that the rejection of credits from such a course is a clear example of *applying* reasonable and relevant academic standards, not the absence of standards. (I suppose it's possible that discovery will reveal that the UC system decides which high school courses to accept and which not to accept in an arbitrary and irrational way, but that seems to me quite unlikely.) What would be literally "standardless" (although not necessarily unconstitutional) would be for the UC system to accept credits from any course given by any high school, regardless of whether the course met minimum academic standards. And in a message dated 8/29/05 4:33:44 PM, Rick Duncan writes: In an e-mail message cited in the lawsuit, a university admissions official wrote that the content of courses that use textbooks from the two publishers is "not consistent with the viewpoints and knowledge generally accepted in the scientific community." * * * The email quoted by the Chronicle may be a forgery, but if it is accurate it amounts to an admission that the university is targeting, at least in part, the religious viewpoints expressed in the textbooks. Not necessarily. It depends what the official meant when he used the word "viewpoints." Most likely he or she had not just read Lamb's Chapel, and was not using the word in a First Amendment viewpoint-discrimination sense. If what the official meant was that the course was rejected because it taught biology from the "viewpoint" that the earth was created 6,000 years ago and all facts about life on earth must be made to fit within that 6,000-year span, then the statement is not an "admission" of anything that will be disadvantageous to the UC system in litigation. I suppose "the earth was created 6,000 years ago" is a religious viewpoint, but then I suppose so is "circumference equals 3x diameter," see I Kings 7:23. But nothing in Lamb's Chapel or its progeny would require the UC system to accept credit from a high school geometry course that was based upon that "viewpoint." Art Spitzer ___ 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.
"Bloodsucking circumcision"
That's the headline Slate gave this story, and it's surprisingly accurate. According to this New York Times article, http://www.nytimes.com/2005/08/26/nyregion/26circumcise.html?adxnnl=1&ad xnnlx=1125344508-1l0XYEAQaD0o+O4NL+m3Fw, A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice. The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . . The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it. It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . . The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . . "[T]he most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision," and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible). . . . "The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change." Any thoughts on whether a ban on such oral suction would be proper (assuming that it does indeed pose a danger, though not a vast danger)? Would it be constitutional, if the New York Constitution is interpreted as providing for a Sherbert/Yoder compelled exemption regime (a matter that's currently unsettled)? Eugene ___ 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.
The Original Message: UC system sued
In a message dated 8/28/2005 12:05:34 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: A group of Christian schools is suing the University of California system claiming discrimination because they won't recognize and accept credits from certain courses, including one that includes a young earth creationist textbook in a science class. Two links on it:http://www.presstelegram.com/Stories/0,1413,204~21474~3026833,00.htmlhttp://news.yahoo.com/s/ap/20050827/ap_on_re_us/creationism_lawsuit;_ylt=Aj9doupMbYBM4QWi9_AfpjtvzwcF;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUlIs there any legal basis for such a suit? (Emphasis added.) I think that this case presents fascinating possibilities for discussing law and religion. Ed's question is whether there is any legal basis for such a suit. I think to the point of tears I have made clear where I would go looking for legal bases for the suit: (1) viewpoint discrimination and (2) standardless and unbridled discretion. In "normal" cases, that is, one's not apt to be distorted by one of the Court's peccadilloes (the "abortion" distortion factor, for example), any constitutional litigator would be drooling over a case that carried the possibilities of government viewpoint discrimination and standardless discretion. Mr. Brayton obviously doesn't need my help to defend himself, but as an experienced constitutional litigator let me say that I find Mr. Brayton's posts more careful with the facts, more logical, and better grounded in the law, than the posts on this subject by either Prof. Duncan or my friend Jim Henderson, whose statements about "standardless, unbridled discretion" seem to have little to do with the real world. I, for one, am glad to be able to benefit from Mr. Brayton's knowledge. I object to my friend, Art Spitzer's accusation that I am being less careful with the facts. I have adverted to the facts only a bit, and in doing so have adverted to the news source that Ed cited at the start of this thread. I haven't gone looking for other sources, read the UC webpages on approved and disapproved courses, etc. Just took the facts as Ed offered them. What I did do, and Art's reaction does surprise me here, is ask questions about other fact patterns, more and less related to this one, in order to try and tease out a discussion of governing legal principles. Art finds "standardless, unbridled discretion" discussions to have little to do with the real world (as a side note, the Supreme Court has agreed with Art of late on this point; see the majority opinion in Hill v. Colorado). I wonder why this concern in "other worldly." Has the ACLU developed a position that prior restraint doctrine as it has been is passe? Has the ACLU concluded that precious liberties, of religious exercise, of speech, press, assembly, know no truer friend, no dearer guardian, than the cop on the beat, the bureaucrat in the maze of government agencies? It is, perhaps, unfair to ask that Art speak for an organization when his voice on this list was only his own. But I get the ACLU email blasts and the kind of discretion that bothers me here and doesn't apparently bother Art is precisely what bothers the ACLU about the powers endowed on the feds in the Patriot Act. (When I poke at Art I feel that I must express my personal appreciation for positions on the right to freedom of speech and press that he has staked out in the past, including in cases in which I was representing parties). There was another comment by Rick that I inadvertently erased asking if I didn't think the First Amendment was at least a bit implicated in such controversies. I still tend to think the answer is no, for reasons given earlier about the irrelevance of content- and viewpoint-neutrality to assessing the way that universities organize themselves. And as for this point, again, I would not think that a search for constitutional grounds would succeed if this was a case in which "universities [had] organize[d] themselves." But of course, this is not such a case. As I understand it, the State of California has organized the University of California system. These are state schools, state institutions. I know that Sandy does not dispute this point. I can prove it. Let California make a condition of admission the taking of the following oath: "I attest to the literal truth of the Holy Scripture. I attest to the creation in six days of all that exists. I attest to the Virgin Birth. I attest the teaching ministry, miracles, passion, death and resurrection of Jesus the Christ." How quickly would Sandy, or his stand - in, be in a federal court challenging the condition of admission. This is about government conduct. True there is discretion to be had. But it is not vast. It is not standardless. It is not unbridled. Ed asked if there are legal bases for the suit. These, at least, are
Re: What Are the facts
Here is some additional information, reported by the Chronicle of Higher Education, apparently coming from an email sent by a university admissions official: In an e-mail message cited in the lawsuit, a university admissions official wrote that the content of courses that use textbooks from the two publishers is "not consistent with the viewpoints and knowledge generally accepted in the scientific community." Here is another excerpt from the Chronicle article: According to the 108-page complaint, which names the system's Board of Regents and five university officials as defendants, the university rejected biology and physics courses at Calvary Chapel Christian School and other Christian schools because the courses included the use of textbooks published by A Beka Book Inc. and Bob Jones University Press, two Christian publishers. These are probably the two largest publishers of textbooks for theologically conservative Christian schools. In other words, many Christian schools will be affected by this textbook decision. If schools which use these textbooks have their courses disapproved for UC admissions, then students who graduate from these schools will not be allowed to attend the state university. Some may see this as the University merely maintaining academic standards. But to others it amounts to a "conservative Christian school graduates need not apply" sign posted on the gate to UC. The email quoted by the Chronicle may be a forgery, but if it is accurate it amounts to an admission that the university is targeting, at least in part ,the religious viewpoints expressed in the textbooks. Rick DuncanMark Graber <[EMAIL PROTECTED]> wrote: But, as I read the article, the crucial factual allegation were ascounsel reported them, the paper simply quotes Bird without commentingon the accuracy of his allegations.>>> [EMAIL PROTECTED] 08/29/05 2:31 PM >>>Mark: Of course. We are relying on the news reports for the facts.Litigation may tell a more complete or even a different story. And as Isaid, Bird may win or Bird may lose. Even if the facts are as Birdalleges, Bird may lose because the courts may decide to defer to theUniversity in the admissions process.But if the facts are as the newspaper reports them, there are seriousissues about Fr Sp, Fr Ex, and perhaps even under the EC. I think weagree on this much.RickRick Duncan <[EMAIL PROTECTED]>wrote:Date: Mon, 29 Aug 200511:28:39 -0700 (PDT)From: Rick Dun! can <[EMAIL PROTECTED]>Subject: Re: What Are the factsTo: Mark Graber <[EMAIL PROTECTED]>Mark: Of course. We are relying on the news reports for the facts.Litigation may tell a more complete or even a different story. And as Isaid, Bird may win or Bird may lose. Even if the facts are as Birdalleges, Bird may lose because the courts may decide to defer to theUniversity in the admissions process.But if the facts are as the newspaper reports them, there are seriousissues about Fr Sp, Fr Ex, and perhaps even under the EC. I think weagree on this much.RickMark Graber <[EMAIL PROTECTED]>wrote:Professor Duncan writes:"UC officials have decided to "single out one perspective, and turn downthese courses because of their Christian perspective," said WendellBird, an Atlanta-based lawyer who filed the lawsuit in Los Angelesfederal court. "That is flat-out discrimination." "! I am not sure this is that helpful.1. I suspect most people would agree that if the UC system is behavingas counsel describes, they are behaving unconstitutionally. I suspect,by the way, that even Professor Duncan might agree that if the facts aspresented in the UC brief are 100% correct, then they ought to win.2. I suspect most people would agree that in a very high percentage ofconstitutional lawsuits, particularly at the district court level, ifthe facts as alleged by one party ar correct, then that party ought towin on the merits.Mark A. GraberRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad orMordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, ornumbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad orMordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, ornumbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.u
Re: What Are the facts
I agree, Mark. The facts are not necessarily what Bird alleges. RickMark Graber <[EMAIL PROTECTED]> wrote: But, as I read the article, the crucial factual allegation were ascounsel reported them, the paper simply quotes Bird without commentingon the accuracy of his allegations.>>> [EMAIL PROTECTED] 08/29/05 2:31 PM >>>Mark: Of course. We are relying on the news reports for the facts.Litigation may tell a more complete or even a different story. And as Isaid, Bird may win or Bird may lose. Even if the facts are as Birdalleges, Bird may lose because the courts may decide to defer to theUniversity in the admissions process.But if the facts are as the newspaper reports them, there are seriousissues about Fr Sp, Fr Ex, and perhaps even under the EC. I think weagree on this much.RickRick Duncan <[EMAIL PROTECTED]>wrote:Date: Mon, 29 Aug 200511:28:39 -0700 (PDT)From: Rick Dun! can <[EMAIL PROTECTED]>Subject: Re: What Are the factsTo: Mark Graber <[EMAIL PROTECTED]>Mark: Of course. We are relying on the news reports for the facts.Litigation may tell a more complete or even a different story. And as Isaid, Bird may win or Bird may lose. Even if the facts are as Birdalleges, Bird may lose because the courts may decide to defer to theUniversity in the admissions process.But if the facts are as the newspaper reports them, there are seriousissues about Fr Sp, Fr Ex, and perhaps even under the EC. I think weagree on this much.RickMark Graber <[EMAIL PROTECTED]>wrote:Professor Duncan writes:"UC officials have decided to "single out one perspective, and turn downthese courses because of their Christian perspective," said WendellBird, an Atlanta-based lawyer who filed the lawsuit in Los Angelesfederal court. "That is flat-out discrimination." "! I am not sure this is that helpful.1. I suspect most people would agree that if the UC system is behavingas counsel describes, they are behaving unconstitutionally. I suspect,by the way, that even Professor Duncan might agree that if the facts aspresented in the UC brief are 100% correct, then they ought to win.2. I suspect most people would agree that in a very high percentage ofconstitutional lawsuits, particularly at the district court level, ifthe facts as alleged by one party ar correct, then that party ought towin on the merits.Mark A. GraberRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad orMordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, ornumbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad orMordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, ornumbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to thi! s 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.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___ 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.
Re: What Are the facts
Rick Duncan wrote: Here are the facts as reported by the San Diego Union-Tribune: "The lawsuit contends that for 70 years, the UC system accepted high school courses completed by students in classes such as history, English and math. But recently, UC officials have started regulating the content of the high school classes and the books used. Science, English, history and social science courses that Calvary offers were rejected by UC officials, and two biology textbooks produced by Christian publishers were deemed unacceptable, the lawsuit says. UC officials have decided to "single out one perspective, and turn down these courses because of their Christian perspective," said Wendell Bird, an Atlanta-based lawyer who filed the lawsuit in Los Angeles federal court. "That is flat-out discrimination." Bird said to his knowledge UC is the only public university system in the nation not accepting such Christian school teachings. . The Calvary school lawsuit complains that in January 2004 a UC official informed Christian high schools that two Christian biology textbooks weren't acceptable, and that the schools' science course outlines were "not consistent with the viewpoints and knowledge generally accepted in the scientific community." Wendell Bird is a very distinguished constitutional litigator. If the reported facts are correct,students attending a subgroup of Christian high schools (i.e. those using the biology textbooks published by the Christian publisher) have been disqualified from admission to the tax-funded university system. These high schools--as I have called them "theologically conservative evangelical Christian schools"--have been disqualified at least in part because of "the viewpoints" taught at the schools. I still maintain that this is not an accurate restatement of the facts. The high schools themselves have not been rejected, not have students from those high schools, only the few specific classes based upon a few specific textbooks. The students are still free to take a different course, either at their school or at another school or a community college, to make up for the loss of this credit, or perhaps to take an additional class in that subject so they don't need that credit (most universities require X number of years or semesters of study in each area). And because the university has notified the school of this, guidance counselors are in a position to advise students on how to insure that they get access. And regardless of how distinguished one might think Wendell Bird to be, much of what he says here appears to be inflated rhetoric, not facts. It's not accurate or reasonable to say that the UC rejects these classes "because of their Christian perspective" because, almost assuredly, they accept many other courses from hundreds of Christian schools around the nation that are also taught from a Christian perspective. So why are these being singled out? Not because the university just wants to reject anything Christian or because they're biased against Christianity, but because they find them to fall below their standards and that they will not adequately prepare students for college coursework in the UC system. We at least should be able to agree that this is the sort of analysis that universities must do every day involving a wide range of courses and that it is perfectly legitimate to do so. And we ought also to be able to agree that just because that happens to impact on a particular religious group's beliefs doesn't necessarily mean that there is illegal discrimination going on. Let's take this example. Suppose a student attends a Muslim school and that the science textbook they use begins with this sort of premise: "The only true means of understanding the world is through the revelations handed down by the Prophet Muhamed (Peace Be Upon Him) in the Holy Quran. Whenever the scientific facts appear to contradict a literal reading of the Holy Quran, those scientific facts must be wrong. It doesn't matter how compelling the science may seem, it doesn't matter how well it explains the evidence, and it doesn't matter what the evidence says - only the Holy Quran matters." And suppose that from that point on, the textbook continually referred to various suras from the Quran as proof of their interpretation and contends that 99% of all the scientists in the world and 99% of all the science they study and teach is completely wrong because their interpretation of the Quran says so. And suppose it goes on to advocate positions that have been thoroughly and completely disproven by scientists for over a century. Would you regard this as a class that prepares students well, that equips them with a reasonable understanding of science and with the knowledge to do college level course work that, rather than studying the Quran, relies upon testing hypotheses against the data of the natural world? Would a college be illegally discriminating a
Re: What Are the facts
But, as I read the article, the crucial factual allegation were as counsel reported them, the paper simply quotes Bird without commenting on the accuracy of his allegations. >>> [EMAIL PROTECTED] 08/29/05 2:31 PM >>> Mark: Of course. We are relying on the news reports for the facts. Litigation may tell a more complete or even a different story. And as I said, Bird may win or Bird may lose. Even if the facts are as Bird alleges, Bird may lose because the courts may decide to defer to the University in the admissions process. But if the facts are as the newspaper reports them, there are serious issues about Fr Sp, Fr Ex, and perhaps even under the EC. I think we agree on this much. Rick Rick Duncan <[EMAIL PROTECTED]> wrote:Date: Mon, 29 Aug 2005 11:28:39 -0700 (PDT) From: Rick Duncan <[EMAIL PROTECTED]> Subject: Re: What Are the facts To: Mark Graber <[EMAIL PROTECTED]> Mark: Of course. We are relying on the news reports for the facts. Litigation may tell a more complete or even a different story. And as I said, Bird may win or Bird may lose. Even if the facts are as Bird alleges, Bird may lose because the courts may decide to defer to the University in the admissions process. But if the facts are as the newspaper reports them, there are serious issues about Fr Sp, Fr Ex, and perhaps even under the EC. I think we agree on this much. Rick Mark Graber <[EMAIL PROTECTED]> wrote: Professor Duncan writes: "UC officials have decided to "single out one perspective, and turn down these courses because of their Christian perspective," said Wendell Bird, an Atlanta-based lawyer who filed the lawsuit in Los Angeles federal court. "That is flat-out discrimination." " I am not sure this is that helpful. 1. I suspect most people would agree that if the UC system is behaving as counsel describes, they are behaving unconstitutionally. I suspect, by the way, that even Professor Duncan might agree that if the facts as presented in the UC brief are 100% correct, then they ought to win. 2. I suspect most people would agree that in a very high percentage of constitutional lawsuits, particularly at the district court level, if the facts as alleged by one party ar correct, then that party ought to win on the merits. Mark A. Graber Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___ 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.
RE: UC system sued
The Chronicle of Higher Education has a story on this dispute: http://chronicle.com/daily/2005/08/2005082902n.htm (subscription required). Mark S. Scarberry Pepperdine University School of Law ___ 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.
AW: AW: UC system sued
Rick writes: But doesn't it trouble Sandy, even a little, when a state university begins to censor textbooks, used in state-accredited high schools, for unacceptable viewpoints? My only honest answer is yes and no. I.e., as I've argued earlier, all universities at all times are distinguishing between "acceptable" and "unacceptable" viewpoints. So if I treat Rick's comment as a general point, then my answer is no, I'm not bothered one iota, since I can truly not conceive of an alternative. But he's surely right that I would be very upset if a university discredited some viewpoint that I'm strongly committed to. Such things, of course, were at the heart of a lot of the critique of universities in the 1960s, when I was a founding member of the Caucus for a New Political Science. At the end of the day, one simply has to look at the concrete examples rather than offer glittering generalities. Does Sandy really believe that a student who graduated at the top of the class from one of the unapproved schools and who achieved high scores on the SAT or ACT is not academically prepared for the UC system? It all depends on what one means by the notion of being "academically prepared." And, of course, down the pike is grading down (or, more to the point, flunking) someone who persists in giving academically indefensible answers, like suggesting that there is evidence outside the Bible for Jews being in Sinai or outside the book of Mormon for the presence of Nephites and Lamanites in North America. There was another comment by Rick that I inadvertently erased asking if I didn't think the First Amendment was at least a bit implicated in such controversies. I still tend to think the answer is no, for reasons given earlier about the irrelevance of content- and viewpoint-neutrality to assessing the way that universities organize themselves. sandy Indeed, this policy could be seen as a declaration of war by UC against religious high schools that teach certain religious viewpoints in the classroom (not just in science class, but in history, social studies, and other courses). This is only one step removed from regulations that withhold accreditation from private schools based upon the viewpoints taught in the classroom. Is Sandy really comfortable with this under the 1A? Rick Duncan Sanford Levinson <[EMAIL PROTECTED]> wrote: I hope that Eugene, whose comments are entirely to the point, won't think that I'm breaching his very sound advice when I say that the arguments below, just as was the case with one of Rick's earlier postings on ID, seem to me to reject any notion at all of disciplinary expertise and put in their place a kind of pure populism. As I've suggested earlier, there is no cogent way of understanding universitities as "content" or "viewpoint" neutral. It simply makes no sense to treat UC the way one would treat a public park. To insult university admissions committees as "eductractic functionaries" suggests that one may as well admit people by sheer lottery, which is the only way of achieving purely non-discretionary admissions. If I've misunderstood the thrust of the argument, please explain. Assume, incidentally, that some university is so unwise to ask for an essay on "early settlement of North America," and a Mormon student elaborates the story of the Nephites and the Lamanites, something for which (like the Exodus from Egypt) there is not a scintilla of evidence other than the relevant holy books. Would the committee really have to treat that answer as the equal to someone who was actually familiar with documented knowledge about early settlement (or Egyptian history). sandy Von: [EMAIL PROTECTED] im Auftrag von Rick Duncan Gesendet: Mo 29.08.2005 09:12 An: Law & Religion issues for Law Academics Betreff: Re: UC system sued Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ I think Jim has put his finger on the pulse of this issue. To the extent that university officials are engaged in an ad hoc discretionary evaluation of which textbooks qualify for the admissions process, there are serious issues under both the Free Speech Clause and the Fr Ex Cl. I have just published an article discussing the "individualized" process rule of Sherbert (as Sherbert was transfigured in Smith and Lukumi): See Duncan, Free Exercise and I
Re: UC system sued
This is many, many steps removed from Rick's stated fear. Universities can have admissions standards and exercise discretion as to what courses meet its admissions requirements. UC is not excluding those students. It is merely saying that certain subjects are prerequisites to admission to the University and that certain courses do not meet the requirements merely because they are called "biology" or whatever.Rick, do you seriously contend that a school could call a course about Genesis "Biology" and require the UC system to accept it as a HS science course?SteveOn Aug 29, 2005, at 2:22 PM, Rick Duncan wrote:Of course, Sandy is correct that universities have to take merit into account when making admissions decisions. But doesn't it trouble Sandy, even a little, when a state university begins to censor textbooks, used in state-accredited high schools, for unacceptable viewpoints? Suppose Red State U decides that it will not credit high school history courses that use textbooks that contain "feminist" perspectives or "anti-war" perspectives? Would this trouble Sandy, when students who graduate from these schools are informed that, no matter how good their academic achievements, they may not attend the state university system paid for by their parents' tax dollars? The news article said that UC has a long history of admitting students who graduated from the now unapproved Christian high schools. I wonder if the university checked to see whether these students performed well? Does Sandy really believe that a student who graduated at the top of the class from one of the unapproved schools and who achieved high scores on the SAT or ACT is not academically prepared for the UC system? Indeed, this policy could be seen as a declaration of war by UC against religious high schools that teach certain religious viewpoints in the classroom (not just in science class, but in history, social studies, and other courses). This is only one step removed from regulations that withhold accreditation from private schools based upon the viewpoints taught in the classroom. Is Sandy really comfortable with this under the 1A? Rick Duncan -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"There is no cosmic law forbidding the triumph of extremism in America."Thomas McIntyre ___ 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.
Re: What Are the facts
Mark: Of course. We are relying on the news reports for the facts. Litigation may tell a more complete or even a different story. And as I said, Bird may win or Bird may lose. Even if the facts are as Bird alleges, Bird may lose because the courts may decide to defer to the University in the admissions process. But if the facts are as the newspaper reports them, there are serious issues about Fr Sp, Fr Ex, and perhaps even under the EC. I think we agree on this much. RickRick Duncan <[EMAIL PROTECTED]> wrote: Date: Mon, 29 Aug 2005 11:28:39 -0700 (PDT)From: Rick Duncan <[EMAIL PROTECTED]>Subject: Re: What Are the factsTo: Mark Graber <[EMAIL PROTECTED]> Mark: Of course. We are relying on the news reports for the facts. Litigation may tell a more complete or even a different story. And as I said, Bird may win or Bird may lose. Even if the facts are as Bird alleges, Bird may lose because the courts may decide to defer to the University in the admissions process. But if the facts are as the newspaper reports them, there are serious issues about Fr Sp, Fr Ex, and perhaps even under the EC. I think we agree on this much. Rick Mark Graber <[EMAIL PROTECTED]> wrote: Professor Duncan writes:"UC officials have decided to "single out one perspective, and turn downthese courses because of their Christian perspective," said WendellBird, an Atlanta-based lawyer who filed the lawsuit in Los Angelesfederal court. "That is flat-out discrimination." "I am not sure this is that helpful.1. I suspect most people would agree that if the UC system is behavingas counsel describes, they are behaving unconstitutionally. I suspect,by the way, that even Professor Duncan might agree that if the facts aspresented in the UC brief are 100% correct, then they ought to win.2. I suspect most people would agree that in a very high percentage ofconstitutional lawsuits, particularly at the district court level, ifthe facts as alleged by one party ar correct, then that party ought towin on the merits.Mark A. GraberRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner__Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___ 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.
Re: AW: UC system sued
Of course, Sandy is correct that universities have to take merit into account when making admissions decisions. But doesn't it trouble Sandy, even a little, when a state university begins to censor textbooks, used in state-accredited high schools, for unacceptable viewpoints? Suppose Red State U decides that it will not credit high school history courses that use textbooks that contain "feminist" perspectives or "anti-war" perspectives? Would this trouble Sandy, when students who graduate from these schools are informed that, no matter how good their academic achievements, they may not attend the state university system paid for by their parents' tax dollars? The news article said that UC has a long history of admitting students who graduated from the now unapproved Christian high schools. I wonder if the university checked to see whether these students performed well? Does Sandy really believe that a student who graduated at the top of the class from one of the unapproved schools and who achieved high scores on the SAT or ACT is not academically prepared for the UC system? Indeed, this policy could be seen as a declaration of war by UC against religious high schools that teach certain religious viewpoints in the classroom (not just in science class, but in history, social studies, and other courses). This is only one step removed from regulations that withhold accreditation from private schools based upon the viewpoints taught in the classroom. Is Sandy really comfortable with this under the 1A? Rick DuncanSanford Levinson <[EMAIL PROTECTED]> wrote: I hope that Eugene, whose comments are entirely to the point, won't think that I'm breaching his very sound advice when I say that the arguments below, just as was the case with one of Rick's earlier postings on ID, seem to me to reject any notion at all of disciplinary expertise and put in their place a kind of pure populism. As I've suggested earlier, there is no cogent way of understanding universitities as "content" or "viewpoint" neutral. It simply makes no sense to treat UC the way one would treat a public park. To insult university admissions committees as "eductractic functionaries" suggests that one may as well admit people by sheer lottery, which is the only way of achieving purely non-discretionary admissions. If I've misunderstood the thrust of the argument, please explain. Assume, incidentally, that some university is so unwise to ask for an essay on "early settlement of North America," and a Mormon student elaborates the story of the Nephites and the Lamanites, something for which (like the Exodus from Egypt) there is not a scintilla of evidence other than the relevant holy books. Would the committee really have to treat that answer as the equal to someone who was actually familiar with documented knowledge about early settlement (or Egyptian history). sandy Von: [EMAIL PROTECTED] im Auftrag von Rick DuncanGesendet: Mo 29.08.2005 09:12An: Law & Religion issues for Law AcademicsBetreff: Re: UC system sued Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ I think Jim has put his finger on the pulse of this issue. To the extent that university officials are engaged in an ad hoc discretionary evaluation of which textbooks qualify for the admissions process, there are serious issues under both the Free Speech Clause and the Fr Ex Cl. I have just published an article discussing the "individualized" process rule of Sherbert (as Sherbert was transfigured in Smith and Lukumi): See Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Neb. L.Rev. 1178 (2005). I read the transfigured Sherbert as creating a categorical rule that takes a case out of the general rule of Smith and creates a safe harbor for religious liberty when government adopts an individualized process for allocating governmental burdens or benefits. An "individualized process" is one in which government officials determine eligibility for government benefits or exemptions from governmental burdens by exercising discretionary authority on a case by case basis. I just mailed reprints last Friday, so many of you should be getting this article this week.I don't know exactly how it applies to the UC case, but both Fr Sp and Fr Ex are particularly vulnerable when government officials exercise discretionary control over which ideas taught in which high schools open the gates to taxpayer-funded higher education. Cheers, Rick[EMAIL PROTECTED] wrote: In a message dated 8/29/2005 6:53:35 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Surely a college or univer
Re: What Are the facts
The other thing I wonder about - putting aside the issue of whether you feel the textbooks and history books are sufficiently accurate - is there really any empirical evidence showing that students who learned from these books are incapable of studying in college? How hard could it be to tell them - well, we disagree with what that High School book of yours said - here's what WE'RE teaching. My wife is a young earth creationist (I'm more of an old earth ID guy). However, she's perfectly capable of reasoning, and learning a different system that's being taught, with the best of 'em. I am highly suspicious of the assertion that students who learned from books with which the UC administrators disagree are actually incapable, or even less capable, of succeeding in college. Sam Ventola Denver, Colorado On 8/29/05, Rick Duncan <[EMAIL PROTECTED]> wrote: > > > I accept the list custodian's advice about the tone of the list. I apologize > for responding with heat when I was accused of misrepresenting the facts. So > here is some light: > > Here are the facts as reported by the San Diego Union-Tribune: > > "The lawsuit contends that for 70 years, the UC system accepted high school > courses completed by students in classes such as history, English and math. > But recently, UC officials have started regulating the content of the high > school classes and the books used. > > Science, English, history and social science courses that Calvary offers > were rejected by UC officials, and two biology textbooks produced by > Christian publishers were deemed unacceptable, the lawsuit says. > > UC officials have decided to "single out one perspective, and turn down > these courses because of their Christian perspective," said Wendell Bird, an > Atlanta-based lawyer who filed the lawsuit in Los Angeles federal court. > "That is flat-out discrimination." > > Bird said to his knowledge UC is the only public university system in the > nation not accepting such Christian school teachings. > > . > > The Calvary school lawsuit complains that in January 2004 a UC official > informed Christian high schools that two Christian biology textbooks weren't > acceptable, and that the schools' science course outlines were "not > consistent with the viewpoints and knowledge generally accepted in the > scientific community." > > > > Wendell Bird is a very distinguished constitutional litigator. If the > reported facts are correct,students attending a subgroup of Christian high > schools (i.e. those using the biology textbooks published by the Christian > publisher) have been disqualified from admission to the tax-funded > university system. These high schools--as I have called them "theologically > conservative evangelical Christian schools"--have been disqualified at least > in part because of "the viewpoints" taught at the schools. > > I never said all Christian schools were the victims of this textbook > censorship policy. It is a subgroup, a subgroup defined by the religious > viewpoints taught at the schools. This is probably a large subgroup, a > subgroup composed of theologically conservative Christian schools that > stubbornly insist on using textbooks containing the unacceptable viewpoints. > This raises serious Fr Sp issues (viewpoint discrimination), Fr Ex issues > (exclusion based upon the religious viewpoint taught at a subgroup of > religious schools; perhaps an individualized process for determining which > books and which viewpoints are acceptable), and EC issues (denominational > non-neutrality under Larson). Am I wrong about this? Is this a > misrepresentation of the facts? I don't know much about biology, but I think > I do know a little about the 1A doctrines that are raised by these facts. > Bird may win or lose his case, but based upon the reported facts! , he > certainly has a case (and a large subgroup of Christians have reason to get > politically involved with UC and its treatment of their co-religionists). > > Rick Duncan > > > > > > > > > > > > > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "When the Round Table is broken every man must follow either Galahad or > Mordred: middle things are gone." C.S.Lewis, Grand Miracle > > "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or > numbered." --The Prisoner > > > Start your day with Yahoo! - make it your home page > > Start your day with Yahoo! - make it your home page > > > ___ > 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
Re: What Are the facts
Professor Duncan writes: "UC officials have decided to "single out one perspective, and turn down these courses because of their Christian perspective," said Wendell Bird, an Atlanta-based lawyer who filed the lawsuit in Los Angeles federal court. "That is flat-out discrimination." " I am not sure this is that helpful. 1. I suspect most people would agree that if the UC system is behaving as counsel describes, they are behaving unconstitutionally. I suspect, by the way, that even Professor Duncan might agree that if the facts as presented in the UC brief are 100% correct, then they ought to win. 2. I suspect most people would agree that in a very high percentage of constitutional lawsuits, particularly at the district court level, if the facts as alleged by one party ar correct, then that party ought to win on the merits. 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.
AW: UC system sued
I hope that Eugene, whose comments are entirely to the point, won't think that I'm breaching his very sound advice when I say that the arguments below, just as was the case with one of Rick's earlier postings on ID, seem to me to reject any notion at all of disciplinary expertise and put in their place a kind of pure populism. As I've suggested earlier, there is no cogent way of understanding universitities as "content" or "viewpoint" neutral. It simply makes no sense to treat UC the way one would treat a public park. To insult university admissions committees as "eductractic functionaries" suggests that one may as well admit people by sheer lottery, which is the only way of achieving purely non-discretionary admissions. If I've misunderstood the thrust of the argument, please explain. Assume, incidentally, that some university is so unwise to ask for an essay on "early settlement of North America," and a Mormon student elaborates the story of the Nephites and the Lamanites, something for which (like the Exodus from Egypt) there is not a scintilla of evidence other than the relevant holy books. Would the committee really have to treat that answer as the equal to someone who was actually familiar with documented knowledge about early settlement (or Egyptian history). sandy Von: [EMAIL PROTECTED] im Auftrag von Rick DuncanGesendet: Mo 29.08.2005 09:12An: Law & Religion issues for Law AcademicsBetreff: Re: UC system sued Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ I think Jim has put his finger on the pulse of this issue. To the extent that university officials are engaged in an ad hoc discretionary evaluation of which textbooks qualify for the admissions process, there are serious issues under both the Free Speech Clause and the Fr Ex Cl. I have just published an article discussing the "individualized" process rule of Sherbert (as Sherbert was transfigured in Smith and Lukumi): See Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Neb. L.Rev. 1178 (2005). I read the transfigured Sherbert as creating a categorical rule that takes a case out of the general rule of Smith and creates a safe harbor for religious liberty when government adopts an individualized process for allocating governmental burdens or benefits. An "individualized process" is one in which government officials determine eligibility for government benefits or exemptions from governmental burdens by exercising discretionary authority on a case by case basis. I just mailed reprints last Friday, so many of you should be getting this article this week.I don't know exactly how it applies to the UC case, but both Fr Sp and Fr Ex are particularly vulnerable when government officials exercise discretionary control over which ideas taught in which high schools open the gates to taxpayer-funded higher education. Cheers, Rick[EMAIL PROTECTED] wrote: In a message dated 8/29/2005 6:53:35 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Surely a college or university can set standards for admission! Certainly they can. How about: "No student shall be admitted to the regular course of study without having first sworn allegiance to the government of the United States and to the government of this State." How about: "No student shall be admitted . . . . unless they shall have shorn the hair on their head to a length of no more than 1/4 inch." The reason for the question I propounded earlier, about rejecting a history course for credit because of its viewpoint preference for European exploration and its failure to be politically correct about the exploitive aspects of that grand adventure, was to try and flesh out exactly what constitutional standards anyone will concede restrain the judgments to be made in this area. Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list ca
What Are the facts
I accept the list custodian's advice about the tone of the list. I apologize for responding with heat when I was accused of misrepresenting the facts. So here is some light: Here are the facts as reported by the San Diego Union-Tribune: "The lawsuit contends that for 70 years, the UC system accepted high school courses completed by students in classes such as history, English and math. But recently, UC officials have started regulating the content of the high school classes and the books used. Science, English, history and social science courses that Calvary offers were rejected by UC officials, and two biology textbooks produced by Christian publishers were deemed unacceptable, the lawsuit says. UC officials have decided to "single out one perspective, and turn down these courses because of their Christian perspective," said Wendell Bird, an Atlanta-based lawyer who filed the lawsuit in Los Angeles federal court. "That is flat-out discrimination." Bird said to his knowledge UC is the only public university system in the nation not accepting such Christian school teachings. . The Calvary school lawsuit complains that in January 2004 a UC official informed Christian high schools that two Christian biology textbooks weren't acceptable, and that the schools' science course outlines were "not consistent with the viewpoints and knowledge generally accepted in the scientific community." Wendell Bird is a very distinguished constitutional litigator. If the reported facts are correct,students attending a subgroup of Christian high schools (i.e. those using the biology textbooks published by the Christian publisher) have been disqualified from admission to the tax-funded university system. These high schools--as I have called them "theologically conservative evangelical Christian schools"--have been disqualified at least in part because of "the viewpoints" taught at the schools. I never said all Christian schools were the victims of this textbook censorship policy. It is a subgroup, a subgroup defined by the religious viewpoints taught at the schools. This is probably a large subgroup, a subgroup composed of theologically conservative Christian schools that stubbornly insist on using textbooks containing the unacceptable viewpoints. This raises serious Fr Sp issues (viewpoint discrimination), Fr Ex issues (exclusion based upon the religious viewpoint taught at a subgroup of religious schools; perhaps an individualized process for determining which books and which viewpoints are acceptable), and EC issues (denominational non-neutrality under Larson). Am I wrong about this? Is this a misrepresentation of the facts? I don't know much about biology, but I think I do know a little about the 1A doctrines that are raised by these facts. Bird may win or lose his case, but based upon the reported facts! , he certainly has a case (and a large subgroup of Christians have reason to get politically involved with UC and its treatment of their co-religionists). Rick DuncanRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Start your day with Yahoo! - make it your home page ___ 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.
RE: Religious discrimination in employment
Rick's statement was about teaching, not educating one's children. But Tom's right. I took it to be the lesser claim about the value and meaningfulness of the experience of teaching and not the stronger claim that one is obliged by their faith to incorporate religion in their teaching in a public school. Whether that's what Rick was saying or not, I think Tom is also right that there are religious individuals who are essentially precluded by their faith from sending their children to public school or teaching in a public school. I think they are burdened in the same sense that any person is burdened when they can not avail themselves of government largess or programs or jobs because of a conflict between the operation of the program and the requirements of their faith. Burdens on religious liberty can be justified, but justifying a burden is different that acting as if it isn't there. I do think there is a continuum here. Not all religious individuals are so restricted. For many, the government program could be more valuable and meaningful if it was more resonant with their faith -- but they can still work in the public schools or send their children there. And in some circumstances, there are ways to accommodate religious employees to make government jobs more accessible to them. But, as Tom says, there are other people for whom public schools are simply not an option either to educate their children or as a place of employment. If I want to discuss government aid to religious institutions with these individuals, I think it is basically a non-starter for me to argue that there are no costs to these individuals if government aid to religious schools or other institutions is prohibited. I don't think I do that. I think if you want to write persuasively about church-state issues you have to acknowledge the needs and experiences of others. I don't say I do that perfectly, but I certainly try to see where the other person is. I don't see any solution to contemporary church-state issues that are cost free to everyone and to the public. I think some solutions are better than others, and some costs can be mitigated, or offset, at least to some extent, and sometimes the long term consequences of avoiding costs turn out to be unacceptable. But I don't see how it helps to act as if the costs are not there. In fact, I think it makes things worse. To the extent that compromises are going to be reached on some of these issues (picking up on what I take to be the thrust of Richard Dougherty's post), acknowledging the other side's problem and concerns is a place to begin.There is no reason to think about compromises regarding employment discrimination on the basis of religion or whether it is more important to allow such discrimination in some situations than others -- if you believe the people being denied jobs aren't being harmed or burdened. And even if compromises are not possible, acknowledging the cost to individuals of a policy that on balance is chosen because it best furthers the public good is better than acting as if the costs of the policy don't exist. That takes me back to where I started. If we are talking about religious discrimination based on belief, I think there isn't much of a continuum here. And it is much harder to talk about accommodation. Telling a person he can not obtain a job or other benefit because of what he believes goes to the very core of religious liberty. Yet I find very few proponents of aid to religious programs who are willing to acknowledge the potential costs here to members of minority faiths. They are not suggesting that those costs are outweighed or justified. They act as if the costs simply are not there. Alan Brownstein UC Davis At 09:48 AM 8/29/2005 -0500, you wrote: Thanks to Alan for the gracious remark (whether deserved or not). I agree with him that a given policy concerning church and state can have an assortment of effects that ought to be considered and not ignored or dismissed. I also agree with him that this is true concerning vouchers; and I acknowledge that one likely effect of vouchers will be some increase in the number of school jobs and admissions slots that (because they're in private schools) will be formally closed to certain people simply because of their religious affiliation or non-affiliation. What I want to ask is how Alan or others assess a different effect that I took Rick to be emphasizing with the story about his daughter. Rick's claim is basically a parallel and counter to Alan's: that the public schools (and other secular schools) are currently closed to religious adherents who, like Rick's daughter, conscientiously believe that a significant integration of faith and education is required (call them "religious integrationists"). These people cannot bring their faith into public schools as teachers, nor can their children receive a religiously integrated education. This t
From the list custodian
Title: Message Folks: This is a list that's aimed at academic legal discussion. For very good reasons, the rules of academic legal discussion are generally that you focus on facts and arguments, not on the supposed failings of the other person. This means, among other things: 1. You don't publicly challenge another participant's supposed lack of professional competence, experience, or education. (Imagine, for instance, that you were a lawprof who does legal history at a history conference; if people disagreed with you, would it be polite for them to publicly berate you for not having a history Ph.D.?) If you think the person's arguments are unsound, point out the unsoundness, and let your points speak for themselves. If indeed the other person is incompetent (I suspect most of the time that turns out not to be so), let readers infer that, rather than stating it expressly. 2. You don't publicly call a participant or his arguments dishonest. Assume they're being quite sincere, even if they've fallen into error. Again, point out the mistakes, and let your points speak for themselves. If indeed the other person is being dishonest rather than mistaken (I suspect most of the time that turns out not to be so), let readers infer that, rather than stating it expressly. 3. It doesn't matter if you were provoked by the other person's violations of these rules, or of other rules -- such provocation doesn't justify your own violations. There are lots of good reasons for these rules: They're more fair. They're more likely to yield valuable discussion. They keep discussions pleasant, and avoid alienating listeners. But in any event, please abide by these rules. If you feel that they are too constricting, I'm sure you can find lots of other Internet places that have looser rules (though my sense is that they're also less likely to have useful discussions, perhaps in part precisely because they have the looser rules). The list custodian -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Monday, August 29, 2005 8:49 AMTo: Law & Religion issues for Law AcademicsSubject: Re: UC system sued Rick Duncan wrote: Ed; I am simply not going to respond any further to your lay person's analysis of the law. But let me say this: it should have been clear to any rational reader that when I said "evangelical Christians" ought to be up in arms about a state university system that excludes students from "Christian schools" that I was referring to evangelical Christian schools not Catholic schools or schools from other religious traditions.That still isn't an accurate representation of the facts. They do not reject anyone who goes to an evangelical Christian school. They refuse to give credit for a few specific classes that do not meet their standards. Some evangelical schools may offer those classes, and if so their students will not be credited with those classes when applying for admission. They may still take other approved courses to make up for it, either at their school or at a community college. Either way, it is still absolutely false to claim that UC just rejects students from evangelical Christian schools. I did not misrepresent the facts, and I resent your tendentious lectures. Your tendentious lectures about acience are bad enough, but those on the law are beyond the pale.And I resent your pompous and irrational attempt to pull rank when the issue here has nothing to do with the law but with your simple misrepresentation of the facts. For crying out loud, you're even misrepresenting my statements about your misrepresentations, which are not about the law but about the basic facts of the case. One does not need to be an attorney to point out that the UC is not just denying admission to those who go to Christian schools, or even to evangelical Christian schools. The fact that you continue to repeat the same false claim after having it disproven only shows the absurdity of your attempt to pull rank. Since your possession of a law degree hasn't aided your honesty any, my lack of such certainly cannot be counted as a demerit in this discussion. May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list. May I suggest that you step down from the pedestal on which you have placed yourself. I'm not sure it can bear the weight of your pomposity or your inflated ego. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe,
Expertise
Professor Duncan writes: "May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list." Ignoring tone issues, may I suggest that this seems mistaken, particularly with respect to constitutional law. One of the central features of constitutional commentary is that participants are almost always forced to make historical, philosophical, religious, policy, scientific, etc. claims to which they can make no special claim of expertise. Moreover, having attended both graduate school and law school, I am fairly confident that, at least for my generation, more people learned more about other fields in a PhD program than in a law program (I suspect, by the way, that this is increasingly not true, owing in part to the expansion of legal inquiry and in part to a serious contradiction in the scope of knowledge in too many PhD programs). Hence, it would seem useful to acknowledge that most of us on this list, myself included, regularly make claims on which we lack much expertise. Those who have more expertise in those areas ought to be welcomed. It would strike me that proponents of ID would be particularly in favor of a weakening of demands for professional credentialing, given the celebration of a law professor's writings on evolutionary biology. 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.
Re: UC system sued
In a message dated 8/29/05 11:36:06 AM, [EMAIL PROTECTED] writes: Ed; I am simply not going to respond any further to your lay person's analysis of the law Mr. Brayton obviously doesn't need my help to defend himself, but as an experienced constitutional litigator let me say that I find Mr. Brayton's posts more careful with the facts, more logical, and better grounded in the law, than the posts on this subject by either Prof. Duncan or my friend Jim Henderson, whose statements about "standardless, unbridled discretion" seem to have little to do with the real world. I, for one, am glad to be able to benefit from Mr. Brayton's knowledge. Art Spitzer Legal Director ACLU of the National Capital Area Washington DC ___ 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.
List custodian says: OK, enough public resentment
Title: Message Folks: This thread has gotten much more heated than it needs to be. Throwing around one's resentments and personal accusations -- plus either lecturing people or explaining why you resent their lectures -- is unlikely to advance the debate, or persuade anyone. Please, take a deep breath, calm down, and stick closely to the facts and the substantive arguments. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Monday, August 29, 2005 8:49 AMTo: Law & Religion issues for Law AcademicsSubject: Re: UC system suedRick Duncan wrote: Ed; I am simply not going to respond any further to your lay person's analysis of the law. But let me say this: it should have been clear to any rational reader that when I said "evangelical Christians" ought to be up in arms about a state university system that excludes students from "Christian schools" that I was referring to evangelical Christian schools not Catholic schools or schools from other religious traditions.That still isn't an accurate representation of the facts. They do not reject anyone who goes to an evangelical Christian school. They refuse to give credit for a few specific classes that do not meet their standards. Some evangelical schools may offer those classes, and if so their students will not be credited with those classes when applying for admission. They may still take other approved courses to make up for it, either at their school or at a community college. Either way, it is still absolutely false to claim that UC just rejects students from evangelical Christian schools. I did not misrepresent the facts, and I resent your tendentious lectures. Your tendentious lectures about acience are bad enough, but those on the law are beyond the pale.And I resent your pompous and irrational attempt to pull rank when the issue here has nothing to do with the law but with your simple misrepresentation of the facts. For crying out loud, you're even misrepresenting my statements about your misrepresentations, which are not about the law but about the basic facts of the case. One does not need to be an attorney to point out that the UC is not just denying admission to those who go to Christian schools, or even to evangelical Christian schools. The fact that you continue to repeat the same false claim after having it disproven only shows the absurdity of your attempt to pull rank. Since your possession of a law degree hasn't aided your honesty any, my lack of such certainly cannot be counted as a demerit in this discussion. May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list. May I suggest that you step down from the pedestal on which you have placed yourself. I'm not sure it can bear the weight of your pomposity or your inflated ego. Ed Brayton ___ 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.
RE: UC system sued
Ed and Rick, May I suggest you take this off-list if you wish to continue? Thanks. Kelly Ford Kelly E. Ford, P.C. 4800 SW Griffith Drive, Ste 320 Beaverton, OR 97005 Telephone 503-641-3044 Fax 503-641-8757 www.kellyfordpc.com From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Monday, August 29, 2005 8:49 AMTo: Law & Religion issues for Law AcademicsSubject: Re: UC system sued Rick Duncan wrote: Ed; I am simply not going to respond any further to your lay person's analysis of the law. But let me say this: it should have been clear to any rational reader that when I said "evangelical Christians" ought to be up in arms about a state university system that excludes students from "Christian schools" that I was referring to evangelical Christian schools not Catholic schools or schools from other religious traditions.That still isn't an accurate representation of the facts. They do not reject anyone who goes to an evangelical Christian school. They refuse to give credit for a few specific classes that do not meet their standards. Some evangelical schools may offer those classes, and if so their students will not be credited with those classes when applying for admission. They may still take other approved courses to make up for it, either at their school or at a community college. Either way, it is still absolutely false to claim that UC just rejects students from evangelical Christian schools. I did not misrepresent the facts, and I resent your tendentious lectures. Your tendentious lectures about acience are bad enough, but those on the law are beyond the pale.And I resent your pompous and irrational attempt to pull rank when the issue here has nothing to do with the law but with your simple misrepresentation of the facts. For crying out loud, you're even misrepresenting my statements about your misrepresentations, which are not about the law but about the basic facts of the case. One does not need to be an attorney to point out that the UC is not just denying admission to those who go to Christian schools, or even to evangelical Christian schools. The fact that you continue to repeat the same false claim after having it disproven only shows the absurdity of your attempt to pull rank. Since your possession of a law degree hasn't aided your honesty any, my lack of such certainly cannot be counted as a demerit in this discussion. May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list. May I suggest that you step down from the pedestal on which you have placed yourself. I'm not sure it can bear the weight of your pomposity or your inflated ego. Ed Brayton ___ 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.
Re: UC system sued
Rick Duncan wrote: Ed; I am simply not going to respond any further to your lay person's analysis of the law. But let me say this: it should have been clear to any rational reader that when I said "evangelical Christians" ought to be up in arms about a state university system that excludes students from "Christian schools" that I was referring to evangelical Christian schools not Catholic schools or schools from other religious traditions. That still isn't an accurate representation of the facts. They do not reject anyone who goes to an evangelical Christian school. They refuse to give credit for a few specific classes that do not meet their standards. Some evangelical schools may offer those classes, and if so their students will not be credited with those classes when applying for admission. They may still take other approved courses to make up for it, either at their school or at a community college. Either way, it is still absolutely false to claim that UC just rejects students from evangelical Christian schools. I did not misrepresent the facts, and I resent your tendentious lectures. Your tendentious lectures about acience are bad enough, but those on the law are beyond the pale. And I resent your pompous and irrational attempt to pull rank when the issue here has nothing to do with the law but with your simple misrepresentation of the facts. For crying out loud, you're even misrepresenting my statements about your misrepresentations, which are not about the law but about the basic facts of the case. One does not need to be an attorney to point out that the UC is not just denying admission to those who go to Christian schools, or even to evangelical Christian schools. The fact that you continue to repeat the same false claim after having it disproven only shows the absurdity of your attempt to pull rank. Since your possession of a law degree hasn't aided your honesty any, my lack of such certainly cannot be counted as a demerit in this discussion. May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list. May I suggest that you step down from the pedestal on which you have placed yourself. I'm not sure it can bear the weight of your pomposity or your inflated ego. Ed Brayton No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05 ___ 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.
Re: UC system sued
Ed; I am simply not going to respond any further to your lay person's analysis of the law. But let me say this: it should have been clear to any rational reader that when I said "evangelical Christians" ought to be up in arms about a state university system that excludes students from "Christian schools" that I was referring to evangelical Christian schools not Catholic schools or schools from other religious traditions. I did not misrepresent the facts, and I resent your tendentious lectures. Your tendentious lectures about acience are bad enough, but those on the law are beyond the pale. May I suggest that you apply to law school, and if your academic record is sufficiently good, you may be accepted as a 1L. Then, if you can do the work, you may get a J.D. Then you can do the work of a constitutional lawyer for awhile. Finally, you may be qualified to participate on First Amendment discussions on this list. Cheers, Rick DuncanEd Brayton <[EMAIL PROTECTED]> wrote: Rick Duncan wrote:> Ed: As I recall, you are not a lawyer and you don't seem to have a > good command of relevant legal facts.You're right, I am not a lawyer. However, I would argue that I have a far better command of the facts of this case than you do.> You say students from Christian schools are welcome at UC, and cite > as proof that students from certain schools and certain denominations > are eligible. Of course, that merely adds to the 1A problem, because > it might lead one to believe that denominational discrimination > results from this discretionary book-approval policy (thus adding a > possible EC Clause issue to the mix).This is irrelevant to your statement of the facts of this case. Your statement of the facts of this case said that the UC system "excludes children! who graduate from Christian high schools". That is absolutely false. One doesn't have to be a lawyer to know that it is false. I didn't say anything about "certain denominations", I said schools with a tradition of excellence. In an earlier message, I listed some of the top Christian schools in the nation and noted that graduating with good grades from such a school would almost certainly give a student an advantage over public school students because those schools have such a tradition of academic excellence. That list was not from one denomination. It included not only Catholic and Jesuit schools but also Westminster Academy, a Calvinist school in Georgia that is as strongly fundamentalist as any you can imagine. But their students consistently rank near the top in academic achievement, so students who attended that school would in fact have an advantage over students from a public school. Thus, it is highly misleading to co! ntinue to claim that UC is excluding children who graduate from Christian high schools. Your statement of the facts is false, period. And your pompous "you're not even a lawyer" declaration doesn't change that fact one bit.> We need to know a lot more about the facts, but it seems that it is > only certain textbooks adopted by, shall we say, theologically > conservative evangelical schools, that are the cause of the problem. > Jim, who is an excellent and experienced constitutional litigator, has > the patience of Job to put up with Mr. Brayton's tendentious attacks.I have not attacked Jim Henderson in any way, and I challenge you to find any instance in which I did. I have disagreed with his positions on any number of matters, just as he has disagreed with mine. His disagreement is not an attack upon me, nor is my disagreement an attack upon him. Once again, I think your statement of the facts of this situation bears little relation to the truth.> But I am not Job. And I grow tired of Mr. Brayton's using this > listserv as a forum for attacking people of faith who don't dance to > every step of Mr. Brayton's evolutionary rap.Your weariness at my "evolutionary rap" does not make your representation of the facts any less dishonest, nor does it make your response here any less pompous and unjustified. When you begin to represent the facts of the case honestly and reasonably, then maybe you will have earned the credibility to pull rank on those who call you on it.Ed Brayton-- No virus found in this outgoing message.Checked by AVG Anti-Virus.Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galaha
Re: UC system sued
Rick Duncan wrote: Ed: As I recall, you are not a lawyer and you don't seem to have a good command of relevant legal facts. You're right, I am not a lawyer. However, I would argue that I have a far better command of the facts of this case than you do. You say students from Christian schools are welcome at UC, and cite as proof that students from certain schools and certain denominations are eligible. Of course, that merely adds to the 1A problem, because it might lead one to believe that denominational discrimination results from this discretionary book-approval policy (thus adding a possible EC Clause issue to the mix). This is irrelevant to your statement of the facts of this case. Your statement of the facts of this case said that the UC system "excludes children who graduate from Christian high schools". That is absolutely false. One doesn't have to be a lawyer to know that it is false. I didn't say anything about "certain denominations", I said schools with a tradition of excellence. In an earlier message, I listed some of the top Christian schools in the nation and noted that graduating with good grades from such a school would almost certainly give a student an advantage over public school students because those schools have such a tradition of academic excellence. That list was not from one denomination. It included not only Catholic and Jesuit schools but also Westminster Academy, a Calvinist school in Georgia that is as strongly fundamentalist as any you can imagine. But their students consistently rank near the top in academic achievement, so students who attended that school would in fact have an advantage over students from a public school. Thus, it is highly misleading to continue to claim that UC is excluding children who graduate from Christian high schools. Your statement of the facts is false, period. And your pompous "you're not even a lawyer" declaration doesn't change that fact one bit. We need to know a lot more about the facts, but it seems that it is only certain textbooks adopted by, shall we say, theologically conservative evangelical schools, that are the cause of the problem. Jim, who is an excellent and experienced constitutional litigator, has the patience of Job to put up with Mr. Brayton's tendentious attacks. I have not attacked Jim Henderson in any way, and I challenge you to find any instance in which I did. I have disagreed with his positions on any number of matters, just as he has disagreed with mine. His disagreement is not an attack upon me, nor is my disagreement an attack upon him. Once again, I think your statement of the facts of this situation bears little relation to the truth. But I am not Job. And I grow tired of Mr. Brayton's using this listserv as a forum for attacking people of faith who don't dance to every step of Mr. Brayton's evolutionary rap. Your weariness at my "evolutionary rap" does not make your representation of the facts any less dishonest, nor does it make your response here any less pompous and unjustified. When you begin to represent the facts of the case honestly and reasonably, then maybe you will have earned the credibility to pull rank on those who call you on it. Ed Brayton -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05 ___ 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.
Re: UC system sued
In a message dated 8/29/2005 8:49:47 A.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: Or do you think that the Constitution requires the universities to be standardless and admit and pass anyone? They shouldn't have to learn anything they don't like or already believe to be true, should they? Where would you draw the line? I would start by recognizing that private associations are entitled to greater deference in the creation and maintenance of their relationships, and that government entities are entitled to significantly less deference, and very little discretion, certainly none that is "unbridled" or that is "standardless." Once I have that distinction drawn firmly in mind, I would invited anyone who is addicted to the exercise of standardless, unbridled discretion to take their thirsts to the private setting of colleges and universities not created by and funded by the State. There they may slake their thirsts for just as long as the wallets of those who crave such petty tyrannies can sustain them. In the state institutions that remain behind, I would insist upon strict adherence to the constitutional principles to which earlier I had adverted. Jim Henderson Senior Counsel ACLJ ___ 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.
RE: Hostility
Thanks to Alan for the gracious remark (whether deserved or not). I agree with him that a given policy concerning church and state can have an assortment of effects that ought to be considered and not ignored or dismissed. I also agree with him that this is true concerning vouchers; and I acknowledge that one likely effect of vouchers will be some increase in the number of school jobs and admissions slots that (because they're in private schools) will be formally closed to certain people simply because of their religious affiliation or non-affiliation. What I want to ask is how Alan or others assess a different effect that I took Rick to be emphasizing with the story about his daughter. Rick's claim is basically a parallel and counter to Alan's: that the public schools (and other secular schools) are currently closed to religious adherents who, like Rick's daughter, conscientiously believe that a significant integration of faith and education is required (call them "religious integrationists"). These people cannot bring their faith into public schools as teachers, nor can their children receive a religiously integrated education. This too seems to me to be an effective exclusion -- now of a great many religious integrationist citizens -- and vouchers, by addressing it, would have a powerful prima facie effect of promoting religious liberty (granting that there are other effects to consider as well). >From my reading, Alan doesn't regard this as an exclusion on the same level as private schools formally closing teaching or admissions slots to non-adherents of the faith: he instead says that the religious integrationist teachers simply "will find teaching more fulfilling if they are employed by a private religious school." I don't agree with the relegating of this exclusion to a lesser level. I think that it is just an effective an exclusion in substance for the person who conscientiously believes in the necessity of integrating faith fully into education. Yes, such a person as a formal matter can work in or send her children to the public school, but only if he or she acts entirely against her understanding of faith and education by leaving her faith out of the school's program. I also don't think that it is an answer to say to these citizens that the lack of religious teaching in public schools is no real burden on them because they can pursue their faith at church or religious services, or that schools that don't include religious teaching constitute a "neutral" baseline. That answer, to me, fails to take the position of the religious-integrationist teacher or family seriously and with sympathy. (I don't believe Alan makes that argument, but I think that others have made it explicitly on the list recently.)Finally, I think that in many places and contexts in America, religious integrationists are the minority position, when compared with those who have no religious faith or a less expansive concept of how faith must relate to education. This question is conceptually at the heart of the voucher debate, in my view. If the kind of effective exclusion Rick identified concerning his daughter is as serious as other exclusions (or even worse for constitutional purposes because it's done directly by the government), then vouchers ameliorate a serious problem of religious liberty and there is a strong prima facie case for them based on religious liberty (whatever we might need to do to take account of other effects of vouchers concerning religious liberty). I think that voucher opponents need to explain why an exclusion like the effective exclusion of Rick's daughter from public-school teaching is not as serious a problem as other kinds. Tom Berg University of St. Thomas (Minnesota) _ From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Sun 8/28/2005 4:58 PM To: Law & Religion issues for Law Academics Subject: RE: Hostility I understand Rick's commitment to vouchers and appreciate the fact that some Christian teachers will find teaching more fulfilling if they are employed by a private religious school. But I am disappointed and frustrated by his suggestion that a voucher program pursuant to which half of all families send their children to religious schools that discriminate on the basis of religion in hiring is somehow a win-win scenario for members of non-Christian faiths seeking jobs as teachers. When Christian teachers seek jobs in voucher funded religious schools, that isn't going to open up job opportunities for religious minorities. The increase in jobs in religious voucher schools will occur because half the students that used to be in public schools will not be there any more -- and the number of teaching jobs in those schools will be correspondingly reduced. Without vouchers, no teacher of a minority faith will be barred from teaching at any publicly funded school solely because of his or her religious beliefs. Under my hypothetical, these teachers
Re: UC system sued
Ed: As I recall, you are not a lawyer and you don't seem to have a good command of relevant legal facts. You say students from Christian schools are welcome at UC, and cite as proof that students from certain schools and certain denominations are eligible. Of course, that merely adds to the 1A problem, because it might lead one to believe that denominational discrimination results from this discretionary book-approval policy (thus adding a possible EC Clause issue to the mix). We need to know a lot more about the facts, but it seems that it is only certain textbooks adopted by, shall we say, theologically conservative evangelical schools, that are the cause of the problem. Jim, who is an excellent and experienced constitutional litigator, has the patience of Job to put up with Mr. Brayton's tendentious attacks. But I am not Job. And I grow tired of Mr. Brayton's using this listserv as a forum for attacking people of faith who don't dance to every step of Mr. Brayton's evolutionary rap. Rick DuncanEd Brayton <[EMAIL PROTECTED]> wrote: Rick Duncan wrote:> Why would an evangelical Christian even consider supporting a state > university system that excludes children who graduate from Christian > high schools? I can't think of any reason. Frankly, I don't know why > they would even stay in a state that excludes their children (but not > their tax dollars) from the state university system. Think Red State > young Christian!I don't know why you and Jim insist on misstating and misrepresenting the reality of this situation over and over and over again. UC does NOT exclude children who graduate from Christian high schools. They admit thousands and thousands of students every year who go to Christian high schools, and some of those students, I have argued and no one has yet attempted to deny, probably have an advantage over most public sc! hool kids because of the tradition of excellence at those schools. The issue is not the admission of kids who go to Christian high schools, the issue if admission of a few specific courses at some Christian high schools, courses which fail to meet the standards of the university.Ed Brayton-- No virus found in this outgoing message.Checked by AVG Anti-Virus.Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Do you Yahoo!? Read only the mail you want - Yahoo! Mail SpamGuard.___ 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.
Re: UC system sued
Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ I think Jim has put his finger on the pulse of this issue. To the extent that university officials are engaged in an ad hoc discretionary evaluation of which textbooks qualify for the admissions process, there are serious issues under both the Free Speech Clause and the Fr Ex Cl. I have just published an article discussing the "individualized" process rule of Sherbert (as Sherbert was transfigured in Smith and Lukumi): See Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Neb. L.Rev. 1178 (2005). I read the transfigured Sherbert as creating a categorical rule that takes a case out of the general rule of Smith and creates a safe harbor for religious liberty when government adopts an individualized process for allocating governmental burdens or benefits. An "individualized process" is one in which government officials determine eligibility for government benefits or exemptions from governmental burdens by exercising discretionary authority on a case by case basis. I just mailed reprints last Friday, so many of you should be getting this article this week.I don't know exactly how it applies to the UC case, but both Fr Sp and Fr Ex are particularly vulnerable when government officials exercise discretionary control over which ideas taught in which high schools open the gates to taxpayer-funded higher education. Cheers, Rick[EMAIL PROTECTED] wrote: In a message dated 8/29/2005 6:53:35 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Surely a college or university can set standards for admission! Certainly they can. How about: "No student shall be admitted to the regular course of study without having first sworn allegiance to the government of the United States and to the government of this State." How about: "No student shall be admitted . . . . unless they shall have shorn the hair on their head to a length of no more than 1/4 inch." The reason for the question I propounded earlier, about rejecting a history course for credit because of its viewpoint preference for European exploration and its failure to be politically correct about the exploitive aspects of that grand adventure, was to try and flesh out exactly what constitutional standards anyone will concede restrain the judgments to be made in this area. Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Start your day with Yahoo! - make it your home page ___ 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.
Re: UC system sued
Rick Duncan wrote: Why would an evangelical Christian even consider supporting a state university system that excludes children who graduate from Christian high schools? I can't think of any reason. Frankly, I don't know why they would even stay in a state that excludes their children (but not their tax dollars) from the state university system. Think Red State young Christian! I don't know why you and Jim insist on misstating and misrepresenting the reality of this situation over and over and over again. UC does NOT exclude children who graduate from Christian high schools. They admit thousands and thousands of students every year who go to Christian high schools, and some of those students, I have argued and no one has yet attempted to deny, probably have an advantage over most public school kids because of the tradition of excellence at those schools. The issue is not the admission of kids who go to Christian high schools, the issue if admission of a few specific courses at some Christian high schools, courses which fail to meet the standards of the university. Ed Brayton -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.10.16/83 - Release Date: 8/26/05 ___ 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.
Re: UC system sued
Perhaps Hendu was right from the get go. This issue may be one of religion & politics, more so than religion & law. I don't know what the budget looks like for the UC system, but here in Nebraska it seems we are always getting cut big when things are tough and increased only a little when things are good. We need all the political friends we can get. Even those myth-believing fundies--maybe 25% of the population of California--are valued when their votes are needed! No? Why would an evangelical Christian even consider supporting a state university system that excludes children who graduate from Christian high schools? I can't think of any reason. Frankly, I don't know why they would even stay in a state that excludes their children (but not their tax dollars) from the state university system. Think Red State young Christian! I still think that to the extent that "viewpoints" expressed in Christian textbooks are the target of the UC book-approvers, there are serious 1A issues in play. Litigation will also serve to get this issue a great deal of publicity, and this increases the liklihood of political fallout (and thus of a political solution). By the way, if academic preparedness is what this is truly all about, how do the excluded Christian schools compare with, say, inner city L.A. public schools in terms of student achievement measured by standardized measures of achievement? And what about the compelling interest in diversity at the university we keep heariing so much about when university admissions types wish to use racial preferences to admit unqualified "diversity applicants?" Don't bright--albeit myth-believing--fundies add diversity to the university experience? Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Start your day with Yahoo! - make it your home page ___ 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.
Re: Hostility
Well, I thought I was actually avoiding the political problem you address here. My suggestion was not that the government provide subsidies to religious schools; that is the voucher system I was not talking about, and am not really in favor of. If by subsidy you mean not compelling parents to pay twice for their child's education, then I guess I wouldn't agree that that's a subsidy. Whether we should abolish public education is a different question, and whether we should abolish mandatory schooling is another different question, which I'd be happy to talk about off-list. But I'm not sure that "universal public education" is a "liberal ideal," until we define terms. My point about avoiding 1A issues was that the typical cases (?) arise in public school settings, and some of that could be avoided by my proposal. Richard Dougherty -- Original Message -- From: Steven Jamar <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Mon, 29 Aug 2005 06:45:01 -0400 >Why should anyone be exempt from paying for public education? If >Christians don't need to pay for it, why should people without school- >age children? Why not just get rid of public education and mandatory >schooling entirely? Isn't that the libertarian position you are >really advocating Richard? > >How does government subsidy of religious schools that discriminate in >hiring and indoctrinate students in particular religious beliefs >avoid 1A issues? Or is it that those of us who believe in liberal >ideals like universal public education are just less likely to sue >because of lack of standing? > >Steve > >On Aug 28, 2005, at 11:57 PM, Richard Dougherty wrote: > >> Alan: >> >> I understand amd appreciate your frustration on this issue. I'm >> not sure, though, if you are expressing concern about a >> constitutional point or a public policy point, or both. Many >> believers, of course, think that they are being excluded from >> public schools because of their own religious beliefs not being >> welcome, and thus end up double-paying for education. >> >> I do think that it gets easier to see Rick's point if instead of >> referring to public schools as government-funded we think of them >> as taxpayer-funded, or parent-funded. >> >> What if, instead of arguing for a full-blown voucher plan, we >> started out smaller; parents with school-aged children, say, being >> exempt from paying school taxes if their children are not using the >> taxpayer-funded system? That would avoid a lot of the 1A issues >> that we face all the time (largely because those without children >> in the schools are less likely to get involved in litigation, and >> may not have standing anyway). >> >> Richard Dougherty > >-- >Prof. Steven D. Jamar vox: >202-806-8017 >Howard University School of Law fax: >202-806-8428 >2900 Van Ness Street NW >mailto:[EMAIL PROTECTED] >Washington, DC 20008 http://www.law.howard.edu/faculty/ >pages/jamar > >"I have nothing new to teach the world. Truth and nonviolence are as >old as the hills." > >Gandhi > > > > > > ___ 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.
Re: UC system sued
On Aug 29, 2005, at 8:19 AM, [EMAIL PROTECTED] wrote: The reason for the question I propounded earlier, about rejecting a history course for credit because of its viewpoint preference for European exploration and its failure to be politically correct about the exploitive aspects of that grand adventure, was to try and flesh out exactly what constitutional standards anyone will concede restrain the judgments to be made in this area. Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion.I'm not sure where I would draw the line, but requiring a biology course as a science course seems to be far from the line, wherever it would be, as a matter of constitutional limitation on admissions standards. A requirement of adherence to a religion would be over the line. Students in California are not being denied admission because they belief in a 6000 year old earth. Nor because they studied that. They are being denied admission, to the extent they actually are being denied admission, because they have not study biology as a science. The university can require that.Or do you think that the Constitution requires the universities to be standardless and admit and pass anyone? They shouldn't have to learn anything they don't like or already believe to be true, should they? Where would you draw the line?Steve -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"There is no cosmic law forbidding the triumph of extremism in America."Thomas McIntyre ___ 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.
Re: UC system sued
In a message dated 8/29/2005 6:53:35 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Surely a college or university can set standards for admission! Certainly they can. How about: "No student shall be admitted to the regular course of study without having first sworn allegiance to the government of the United States and to the government of this State." How about: "No student shall be admitted . . . . unless they shall have shorn the hair on their head to a length of no more than 1/4 inch." The reason for the question I propounded earlier, about rejecting a history course for credit because of its viewpoint preference for European exploration and its failure to be politically correct about the exploitive aspects of that grand adventure, was to try and flesh out exactly what constitutional standards anyone will concede restrain the judgments to be made in this area. Where do you draw the line? Is it standards that reach into behaviors? Is it over content? Is it viewpoint? Do you acknowledge that the Constitution puts any limitation on the discretion of these educractic functionaries? If the Constitution is about anything in this area, it is about the business of depriving bureaucrats of standardless discretion. Jim Henderson Senior Counsel ACLJ ___ 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.
Re: Hostility
In a message dated 8/29/2005 6:46:25 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: How does government subsidy of religious schools that discriminate in hiring and indoctrinate students in particular religious beliefs avoid 1A issues? Because taxpayer funding of schools necessary to accommodation and toleration of religion and religious difference respects high principles of the First Amendment. It is a necessary precondition to avoiding unconstitutional conditions in public education. Remember that the decision to require mandatory attendance is not imposed by the Constitution on the States, the States, by constitution or statute, choose to impose this requirement. But the strictures of the First Amendment (made applicable to the States by the Supreme Court's contortions of the Fourteenth Amendment) are imposed on the State. Having concluded that religious, and religiously diverse, students will be compelled to be in attendance at some school, universal funding can be accomplished without risking endorsement of any particular religion or of religion in general, simply to accomplish the government purpose of universal attendance. Jim Henderson Senior Counsel ACLJ ___ 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.
Re: UC system sued
Surely a college or university can set standards for admission! Including the particular subjects that had to be studied and the scope of those subjects. Engineering schools do this. Med schools do this. Colleges and universities do this all the time! This cannot be a remarkable proposition.The high schools in the county where I live start students out with a science course in 9th grade that is not recognized as a science course by the Maryland university system or by any other college my kids were interested in. It is mish-mash general science course which can actually be a great course if taught right or a nothing course if the teacher just goes by the book. But it is not a "recognized" science course -- which are generally limited to biology, chemistry, physics, and the AP versions of those. Some universities require 3 years, some 2 years of HS science.Same thing happens in math. Some schools require 3 years of math -- but don't count anything but algebra, geometry, trig, and calculus.Some require 3 years of a foreign language.And so on.The general science course counts within the HS for credit to graduation, but not for meeting prereqs for college other than that one graduate from HS.This strikes me as absolutely unremarkable and fully proper.Steve -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement."Albert Einstein ___ 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.
Re: Hostility
Why should anyone be exempt from paying for public education? If Christians don't need to pay for it, why should people without school-age children? Why not just get rid of public education and mandatory schooling entirely? Isn't that the libertarian position you are really advocating Richard?How does government subsidy of religious schools that discriminate in hiring and indoctrinate students in particular religious beliefs avoid 1A issues? Or is it that those of us who believe in liberal ideals like universal public education are just less likely to sue because of lack of standing?SteveOn Aug 28, 2005, at 11:57 PM, Richard Dougherty wrote:Alan:I understand amd appreciate your frustration on this issue. I'm not sure, though, if you are expressing concern about a constitutional point or a public policy point, or both. Many believers, of course, think that they are being excluded from public schools because of their own religious beliefs not being welcome, and thus end up double-paying for education.I do think that it gets easier to see Rick's point if instead of referring to public schools as government-funded we think of them as taxpayer-funded, or parent-funded.What if, instead of arguing for a full-blown voucher plan, we started out smaller; parents with school-aged children, say, being exempt from paying school taxes if their children are not using the taxpayer-funded system? That would avoid a lot of the 1A issues that we face all the time (largely because those without children in the schools are less likely to get involved in litigation, and may not have standing anyway).Richard Dougherty -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"I have nothing new to teach the world. Truth and nonviolence are as old as the hills." Gandhi ___ 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.
