« More on graduation rates | Main | Live from NECC »
June 28, 2005
Thou Shalt Not Be Confused: More on Ten Commandments rulingsAs BoardBuzz promised yesterday, we have more today on the Supreme Court's decisions in the McCreary County and Van Orden Ten Commandments cases. McCreary County was the Kentucky courthouses one, Van Orden was the Texas state capitol one. Here's the press release, with resources, from NSBA's press office. Here's Linda Greenhouse's New York Times coverage, and here's an article about the K-12 implications by Education Week's Caroline Hendrie. Here we offer up more observations specifically for the public school world.
First, the Court most definitely did not accept NSBA's plaintive invitation to provide a new and clearer test for resolving such religious controversies. The Court did not retire the Lemon test, as NSBA had urged. If anything, the fractured rulings in these cases make a muddy ground even muddier.
The Justices did seem painfully aware of the toll that these disputes are taking on the nation's social fabric, and several went out of their way to explain their understanding of the meaning of religious liberty under the Constitution. But Justice David Souter, writing the majority opinion in McCreary, seemed to signal that the Court will not provide a convenient, bright-line rule, because this would just invite people to game around it. Indeed, the Court decided that the facts in McCreary revealed an attempt to get around Court holdings in order to promote the religious message of the Ten Commandments.
Justice Stephen Breyer, in his separate concurring opinion in the Van Orden case, went even further. He questioned whether any formulaic test—Lemon or any other—can resolve these questions consistently in such fact-intensive cases. Instead, he said these cases come down to the "exercise of legal judgment" about the purposes of the Religion Clauses—whatever that means for school boards trying to figure out constitutionally acceptable ways to preserve and build public confidence.
Second, it is noteworthy that Chief Justice Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in their opinion upholding the Texas monument, as well as Justice Breyer in his own opinion, specifically noted that a key factor was that the state capitol was not a school setting. Memo to schools: The Ten Commandments do have tremendous historical, cultural, and religious significance, but be very careful about what you do to reflect this fact, because it will be closely scrutinized. Academic motives yes, other motives (probably) no.
Third, the fact that the Court is not about to become clearer is yet more evidence that the culture warriors on all sides could do America's children a giant favor by trying to work toward compromise on things like this. Setting up and waging costly legal battles will never resolve clashes of religious sensibilities. We joked about this on April Fool's Day. But as one school lawyer who read that piece noted, it's a tragic statement that what we wrote there was merely the stuff of satire.
Sadly for our schools, the political and financial payoffs of exploiting religious differences and fears are just too tempting. This kind of sloppy (or deliberately sensational) headline doesn't help. School boards can expect to keep getting caught in the crossfire.
There is, of course, a critical function of public education at stake in all this. It's one the voucher crowd would like Americans to forget. As the Supreme Court itself has pointed out, the "public school is at once the symbol of our democracy and our most pervasive means of realizing our common destiny." Public schools hate to be ground zero in these battles. But unless public schools can help our country learn to discuss these issues respectfully and accept differences, the prospects for our democracy and our common destiny won't be as bright.
Posted June 28, 2005 12:00 AM | Religion
BoardBuzz Feed
