Author: Blue Cereal

Stomping Decisis / A Matter of Degrees (Introduction)

~ Blue Cereal

NOTE: I’m toying with the idea of a follow-up volume to both “Have To” History: Landmark Supreme Court Cases and “Have To” History: A Wall of Separation. The working title is Stomping Decisis (I’ll probably change it if I can think of something better) and the central subject would be major Supreme Court decisions of the Roberts Court with focus on the past few years and the nature of the Court’s lurch to the far right. We’ll see if it actually happens. 

What follows is a rough draft of one possible introduction. I’ve begun playing with the intro this early in the process because I’m trying to figure out the exact approach and “shape” of the book if I actually end up writing it. I’m not even sure at this point if this intro even makes sense or fits where the book is likely to go, but one sure way to get honest feedback is to put it out there and see what happens. Plus, I haven’t posted anything in over a week, and it seemed time. 

As always, your comments and questions are welcome below or via email. You are appreciated. 

MAGA JusticeStomping Decisis (Introduction)

In the spring and summer of 2022, the United States Supreme Court began announcing its findings in the dozens of cases it chose to hear that session. As its decisions began to circulate, there was much rejoicing on the far right and substantial shock from progressives and moderates at the radical direction the Court seemed to be taking. Apparently, social media informed us, states now have to pay for religious education (including overt homophobia and science denial) and public school teachers can pray in front of their students. States are no longer allowed to regulate guns and the C.I.A. doesn’t have to tell anyone the locations of its favorite torture chambers. The Environmental Protection Agency is prohibited from protecting the environment quite so much. Oh, and yes – Roe v. Wade has been overturned. Everyone who gets pregnant for any reason, with their cooperation or without, must now carry the child through delivery whether it’s alive or dead and whether they’re likely to survive the experience or not. 

What the hell happened?

That’s what we’re going to look at in the following pages – once we get through a few spoilers by way of context. 

First, while the Court’s decisions absolutely indicate a lurch to the far right, the descriptions above aren’t entirely accurate or fair – at least not for every case. The emotional reactions many of us experienced (and may still be experiencing) are perfectly understandable and perhaps even justified, but once our collective blood pressure has stabilized a bit, it’s worth looking at precisely what the Court did and didn’t say in its recent decisions. It’s not always as insane as it sounds at first. (Well, except some of the parts written by Justice Thomas.)

Second, shifts like these rarely come completely out of nowhere. It’s easy to miss the signs along the way because most of us have busy lives and other things to pay attention to. When we hear on the news that the Court “saved” the Affordable Care Act or neglected to overturn Roe, we file it all away under “no change” even if that’s not the full story. We rarely dig deeper to see what, in fact, they did say. Sometimes the details just aren’t quite right yet. Other times, the Court is still too ideologically balanced to allow destabilizing lurches to the left or right without better reasons. 

Spoiler alert: that last one is not currently an issue. The far right is in complete control of this Court and will be for the foreseeable future. 

Finally, many of the issues addressed in these cases are simplified and summarized as a practical matter during most media coverage. The Court’s reasoning can get a bit verbose or technical. Other times, there are legal technicalities impacting the specific decision but not directly related to the larger issues involved. And, to be fair, the average American isn’t well-known for their firm grasp on the U.S. Constitution and its amendments or landmark jurisprudence over the past century.

If that’s you, don’t feel too bad – it’s possible you’ve simply had better things to do than slog through this stuff repeatedly during each slew of announcements. 

A Matter Of Degrees

Activists and ideologues have a vested interest in keeping their audiences as stirred up as possible by unfolding events. (That doesn’t mean they’re always wrong – merely that they’re not always the most rational, balanced folks in the conversation.) One of the most foundational means of maintaining this is to repeatedly frame everything in terms of dichotomies – this belief vs. that one, this value vs. the opposite value, and perhaps most importantly, us vs. them.  

In reality, however, there aren’t that many issues over which a clear majority of Americans absolutely, dogmatically disagree in all possible situations. Most of the time, controversies come down to matters of degrees. We’re often working with the same basic sliding scale; we just don’t like where the other guy is trying to mark what’s acceptable and what’s not in ways which then impact all of us.   

Take, for example, the issue of religion in public schools. There are two clauses in the First Amendment which involve religion – the very first two, in fact:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

That’s it. Sixteen words. These are where all the kerfuffles begin. 

The first bit is known as the Establishment Clause. It’s widely understood to mean that government (including states and local governments, thanks to the Fourteenth Amendment) should avoid doing anything that promotes religion in general, or one type of religion or belief system over another. The second part is the Free Exercise Clause. It says that government shouldn’t do anything to hinder or punish religious beliefs or practices. In short, government at all levels should simply stay out of people’s religions. 

It certainly sounds straightforward enough. How hard could this be? 

Now, imagine that there’s a fire in a little Methodist church down the street from wherever you are now. You’ve never been there, but they seem nice enough. Should the fire department rush to the scene and try to save the church, or merely stand by ready to protect nearby homes and businesses if the flame starts to spread?

Most people would insist that the fire department should respond and treat the situation the same way they would any other fire. I could argue, however, that this is a violation of the Establishment Clause because the city is using public resources to promote religion. The faster those firefighters respond and the harder they work, the less damage that fire will do and the more resources that little church will have left over to proselytize and organize potlucks and run Vacation Bible School over the summer.

The same is true of police protection. Road repairs. Ambulance service. You get the idea. Our tax dollars help religious people and organizations all the time. If state or local government refused to do for that little church what it does for every everyone else in town just, it would in effect be punishing church members for their faith. If they wish to participate in the traditions and activities of their religion, they must give up benefits they could have if they weren’t being all “religious.”

Sliding The Scales

Now let’s imagine that we’re not talking about fire or police protection, but public transportation. The city has invested in some stylin’ new shuttles and wants to make it easy for people to get around, no matter what their income levels. There’s a small cost for a ticket to the airport, the mall, downtown, or the theater district, but tickets are free for passengers going to school, a public library, the local health department, or any of the churches along the route – including that little Methodist chapel we’ve been discussing.

How about now? Is this the same as fire protection and road repairs, or is this a special benefit for religion? It’s not even for all religions – just churches which happen to be near established routes! We’re still pretty close to the “put out the fire” end of the scale, but we’re definitely moving a bit. 

Maybe the county has been given funding to improve the lives of children in the area. As part of this, they’re offering to pay for playground upgrades (including that bouncy foam stuff to replace dirt or sand) for any qualifying site. Several schools secure the grant, as does the privately managed area outside the Children’s Science Museum across town. Should our church down the street be allowed to apply as well on the same terms as everyone else? On the one hand, it’s just a playground. On the other, they make no secret of their desire to bring kids into their faith. They use their playground extensively on Sundays and during Vacation Bible School, even though it’s accessible to the neighborhood year-round. 

We’re definitely further along that scale now. Are you still comfortable with letting them partake, or have we crossed a line somewhere along the way from “free exercise” to “establishment”?

As the church grows, perhaps they add a homeless shelter and food pantry comparable to those in other parts of town which receive government grants to support their efforts and ask for similar assistance. Should the state allot funds to this location as well? Would it be OK if the state only provided funds on the condition they be used exclusively for food and shelter and not in direct support of proselytizing or other religious teaching? Does such a distinction even matter when every dollar the church doesn’t have to spend on bread and peanut butter can go to providing Bibles?

Where are we on that scale now?

Homelessness often involves mental illness or other extenuating circumstances. Now the church wants to incorporate counseling and rehab services. Their personnel are trained professionals, but they’re also faithful Christians who share elements of their faith during discussions with clients. If the state supports these efforts to the same extent they do secular services, they’re definitely supporting religion now – right? So what if they only support the “clinical” parts of the counseling and not the “religious” parts. Like, every time someone mentions Jesus, they hold down a button that stops the timer for a bit or something. What do you think now?

Perhaps there’s a lawyer or two in the congregation and the church gradually becomes a primary provider of adoption services in the area as part of their mission to serve the community around them. They’re not comfortable placing children with same-sex couples or divorced women, however. This service isn’t even receiving direct government funding, although it does have to contend with the complex web of laws regulating adoption and they’ve effectively become the only real option in this half of the state. Should they be allowed to pick and choose who they’ll serve, like restaurants in the 1950s?

While we’re at it, we might as well have our little Methodist church start its own private school and ask for the same per-student funding as the public school down the street. We’re not quite to the opposite end of that sliding scale from where we started, but we’re heading that way at a good clip. 

Let’s cap the far end with your legislature declaring the United Methodist Church the official religion of your state and instituting a new tax enabling them to pay for Methodist Preachers and more Methodist buildings. They will not, however, imprison or execute you for believing differently – as long as you pay your taxes. Unless you’re Clarence Thomas, you probably wouldn’t consider that a good balance between establishment and free exercise, meaning somewhere along our scale (or in one of the endless variations continually complicating the issue in real life), you decided there’d been enough “free exercise” and the government was now veering into “establishment.” Lines needed to be drawn to clarify the difference. 

And, if you’re like most Americans, you consider wherever you drew the line to be so obvious that anyone too far right or left of your mark is a bit of a wacko, and possibly dangerous.  

Staking Out Positions

In each iteration, treating the church’s efforts the same as other institutions risks promoting their religion, thus violating the Establishment Clause. The church’s activities aren’t independent of its beliefs; this particular little church strives to serve people and their community because they believe that’s what Jesus wants them to do. On the other hand, treating the church differently than other groups might very well infringe on their faith by denying them the same cooperation or support they’d receive if they weren’t religious (or if they gave up their faith). This violates the Free Exercise Clause. 

Just to complicate things, sometimes the same rules which govern how states or communities relate to or support private organizations are at odds with the specific belief systems of a particular religion. In other words, sometimes treating that little Methodist church the same as everyone else infringes on their free exercise just as much as excluding them altogether. This is when things get really interesting (or maddening, depending on your point of view). 

We can argue the details (they’re very much worth arguing), but the point is that the Establishment Clause and the Free Exercise Clause pull against one another in ways that mean anytime we try to protect one, there’s a chance we’re offending the other a little bit. I’m not aware of any major “wall of separation” cases in which either party has argued in favor of simply eliminating one clause or the other. Where the disagreement comes is precisely where on that sliding scale the lines should be drawn. 

The same sorts of “sliding scales” are present in most debates over the death penalty, immigration policy, reproductive rights, and the like, as well as many issues less likely to end up in the Supreme Court – school dress codes, regulations imposed by your local homeowners’ association, and speed limits just to name a few. This doesn’t suggest that all possible points along each scale are equally defensible or that there are no “right” answers (constitutionally speaking), but recognizing the relative nature of these arguments is often essential to making sense of them along the way and understanding the Court’s rulings and how they sometimes change over time.  

That’s what we’re going to try to do here by visiting a variety of recent Supreme Court decisions and what different justices specifically said about those decisions (whether in support or opposition). We’re also going to zoom in on a few representative topics and trace some of their jurisprudential history over the past century in order to better understand where we are now, and why. 

At every stage, my goal is to keep things as understandable as possible without overly compromising the substance of each argument or issue. It’s worth keeping in mind that I write this book not as a legal expert, but as an educator with twenty-plus years breaking down complex historical and legal issues for teenagers to better help them wrestle with many of these same subjects for themselves. While I certainly have my own points of view on most of these topics (and you’ll have little trouble figuring out what they are along the way), I’ve made every effort to make this material accessible, enjoyable, and useful for readers of all stripes.

Except Justice Clarence Thomas. I doubt he’d enjoy this one at all. 

How Would Jesus Teach (HWJT)?

~ Blue Cereal ~ 1 Comment

Jesus in the ClassroomI’m not a preacher, a prophet, or a theologian. I like too many different colors of children and accept too wide a range of people and their efforts to make sense of this world and their place in it. I don’t worship the police, the military, or the GOP. I don’t even own a gun. So, despite what the current Supreme Court seems to think, I’m probably not the person you want teaching your kids about what American Christianity demands they think, feel, believe, or do.

I’d mess too much of it up.

I do have some experience, however, with being a teacher. I’ve taught literally thousands of teenagers over the past three decades (how terrifying is that?) and worked with hundreds of educators during that span as well. I have a pretty good idea of what often works and which things usually don’t. In a pinch, I can even use fancy pedagogical terms and reference Marzano or Dweck like I mean it.

If you take the (Protestant) Bible at face value, it turns out Jesus did some teaching as well. Apparently it was something he wanted to do from a young age. The scriptures provide only a single account from the period between the Nativity and his adult ministry: as a young man, he bailed on his parents to hang out with successful teachers and practice a little pedagogy of his own (Luke 2:41-52).

I assume carpentry paid better, but sometimes you gotta go with your calling, whatever the tax bracket. He’d later turn down even more prestige and prosperity in favor of his true gig (Matthew 4:1-11, Luke 4:1-13)

The first four books of the New Testament – Matthew, Mark, Luke, and John – contain multiple accounts of his approach to teaching and to those being taught, as well as excerpts of some of his actual lessons. I thought a few of these might prove interesting, given current events.

Now, before you get yourself all worked up in either joyous anticipation or preliminary outrage, I’m not interpreting the actual teachings of Jesus in this post – at least, not as they apply to our eternal souls or doctrinal disputes. I’m more interested in his approach to the enlightenment process itself and what we might be able to learn from it as educators in a very different time and place.

In fact, we should probably start with the “very different” element right up front.

Cultural Context and Contrasts

The times in which Jesus taught were complex enough in their own way, but most of us would have found the pace of life rather tedious. Things simply didn’t happen as fast as we expect today.

Revisit any classic film from the 1970s or 1980s. It doesn’t even have to be a drama – you can choose 101 Dalmatians, Beverly Hills Cop, or even Jaws. While you may still enjoy them, you can’t help but notice the pacing is radically different than what we’ve come to expect. Go back another few decades, and the distinction is even more noticeable.

Keep going for about two thousand years and you have the plodding tempo of the year zero.

That fact alone made teaching anything to anyone a bit easier because you weren’t competing with a wide variety of far more exciting alternatives, many of them in their pockets or hidden under their desks at that exact moment.

The curriculum was also arguably more engaging. Most of Jesus’s teaching focused on the nature of the relationship between man and God, or between people. Some involved divine mysteries, others addressed practical approaches to networking or helping an outreach campaign go viral. But there are few (if any) technical explanations recorded in the four Gospels – no Algebra II or explanations of RNA vs. DNA. Consequently, there wasn’t much in the way of graphic organizers or foldables used in Christ’s lesson plans (as far as we know).

Jesus also taught in a culture much more comfortable with oral instruction. He may have been the only actual Son of God exhorting the crowds in his time, but by most accounts there were dozens of similar “prophets” or “teachers” who took similar approaches and made their own cases for whatever was on their minds.

Finally, most folks listening to Jesus wanted to be there. As is so often pointed out whenever super-smart experts from outside public education share their inspirational analogies about pilots or blueberries or whatever, we’re tasked with capturing, focusing, and enlightening youth who are essentially prisoners in our care for eight hours a day. Anyone not enamored with the Son of Man, on the other hand, could simply walk away without consequences.

Well, without immediate consequences, anyway. I suppose long-term it was probably a bad idea.

Lessons (from Lessons)

Still, there are some recurring elements of Jesus’s approach to teaching which should be familiar to any modern educator and which no doubt increased his effectiveness substantially.

First, Jesus offered wraparound services. He often focused on meeting the critical needs of his students before even thinking about schooling them on whatever topic was on the agenda that day. Most of the time this involved providing health care, although feeding them was sometimes a priority as well. He recognized that many people couldn’t or wouldn’t focus on difficult concepts until their basic needs were met. Such attentiveness also built relationships and credibility, which made subsequent lessons or corrections far more meaningful (Matthew 8, 9, 12, 14, 15, 17, Mark 1, 6, 8, Luke 4, 5, 9, John 5, 6, 9, and other examples too numerous to cite).

Jesus took on every student, whether they “deserved” to be there or not, and whatever their discipline record, lifestyle choices, or societal status (Matthew 15:21-28, 19:13-14, Mark 2:13-17, 10:13-16, Luke 19:1-10, John 4). He rejected the idea that illness or poverty were “natural consequences” of poor choices and instead approached them as opportunities to serve (Luke 5:17-25, 6:37-42, 10:25-37, 14:12-14, John 9). He supported targeted efforts to reach every student (Luke 15) while still recognizing that at some point, whether or not learning and growth actually occurs is up to the individual (Matthew 13:1-9, Mark 4).

At times, he seems to have neglected his family in favor of his mission (Matthew 6:46-49, Luke 8:19-21). While it’s not clear this was intended as a literal example to be followed by the rest of us, it’s a tendency many educators will recognize.

As to his actual teaching, Jesus expressed complex ideas in ways accessible to his audience (Matthew 5:13-14, 7, 13, 20:1-16, Mark 12:1-11, Luke 8, 10:25-37, 19, 20, John 10, 15, and other examples too numerous to cite). His analogies (“parables”) connected new ideas to familiar experiences common to farming, parenting, etc. He was also good about connecting new information to his audience’s prior knowledge (Matthew 5, 12:1-8, Luke 11, 17) and providing real-world examples of potentially elusive ideas.

For particularly important tasks or skills, he offered mentor texts (examples) for them to follow until they were confident enough to customize or create their own (Matthew 6:7-13, Luke 11:1-12).

Jesus insisted on the value of even seemingly small efforts in the face of overwhelming odds and celebrated mindset over standardized measures of achievement (Matthew 13:31-34, Mark 4, Mark 12:41-44, Luke 21:1-4). He even appreciated stubborn determination when the results themselves were questionable (Luke 18:1-8).

Progressive Education

Jesus refused to simply “teach the content” and leave relationships and attitude out of it. He constantly exhorted his students to exceed minimal expectations and push themselves to do better than was absolutely required. Given the choice between performing some task or accomplishing some goal and practicing kindness, restorative justice, or social emotional learning, he preferred the latter (Matthew 5, 7:1-5, 22:34-40, Luke 6).

While pushing “students” to preserve and practice their faith in all settings, he suggested that overtly religious rituals be reserved for the appropriate time and place – not, for example, celebrated on the 50-yard line after lawyering up and contacting the local media (Matthew 6:5-8).

Jesus generally tried to avoid unnecessary socio-political conflict and focus on his mission (Matthew 22:15-22, Mark 12:13-17, Luke 20:20-26) but he wasn’t afraid to break the rules or violate stupid laws in order to better serve those in his care (Matthew 12:1-13, 15:1-20, Mark 2:23-28, 3:1-6, 5:1-17, Luke 6:1-10, Luke 14:1-6). He spoke out on issues related to his efforts and wasn’t afraid to criticize those doing harm to his “kids” (Matthew 11:20-24, 23, Luke 11). He was vocal in calling out bad policy and bad practice (Matthew 23:13-33, Luke 20:45-47, John 2:13-17).

He continued teaching and encouraging others to join the profession in the face of constant insults and opposition from those in religious and political power (Matthew 10). He was willing to learn from “experts” but didn’t become overly enamored with them or automatically buy into everything they were selling (Matthew 23:1-12, Mark 12:38-40). He at times attempted to engage and reason with political and religious authorities despite realizing in advance that they weren’t really looking for solutions so much as grandstanding to promote their own pre-existing ideologies or status (Matthew 12:25-37, Mark 12, John 8).

Practical Considerations

Jesus wasn’t afraid to practice “self-care” and withdraw from the craziness from time to time in order to refocus and re-energize (Mark 1:35-39, Luke 4:42). He willingly worked alone, but actively mentored those newer to the gig (Matthew 9-15 and pretty much every other conversation with his disciples).

He differentiated his lessons from large groups to the smaller, PLC-type sessions with his inner circle (and presumably spoke differently to the little kids than he did to the adults as well). He taught fishermen differently than he did Pharisees and recognized that not everyone could handle all parts of the same curriculum (John 6).

For his efforts, as you probably know, he was demonized and eventually murdered by those representing entrenched religious and political power. I’m not suggesting most educators are likely to be literally crucified before 2025, but it certainly suggests that hating us for what we’re trying to do isn’t exactly new.

Conclusion

This is not my introductory rough draft for an upcoming Teach Like A Messiah book, nor am I looking to break into the gift book market at the local Mardel or LifeWay. Mostly, I just thought there were some interesting elements in Jesus’s approach that might be worthy of consideration.

Not everything that works for one person in one situation works for everyone in all situations – even when that one person is, you know… THAT ONE PERSON. But surely if there’s anyone we could benefit from emulating as we hope against hope that perhaps the truth might still somehow set us free, he’s as good a place as any to start.

Carson v. Makin (Analysis & Carrying On, Part Two)

~ Blue Cereal ~ 1 Comment

Stay On Your Side

Free Exercise Trumps “No Establishment”

If you’re looking for a fairly balanced overview of this case, I suggest starting here. If you’re looking for pithy, insightful analysis, on the other hand, you’re in the right place. The second part of it, anyway.

Last time, we got through opening remarks and personal disclaimers, gave a little background on the Amendments involved, and covered the Court’s introduction to the facts of the case. Chief Justice Roberts summarized the lower courts’ decisions to side with the state. Basically, they’d reasoned, Maine’s plan was intended to offer a proxy of sorts for traditional public education, and thus it was perfectly constitutional to exclude religious schools from the program.

Here’s how the Chief Justice and his cabal respond:

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions” (Lyng v. Northwest Indian Cemetery Protective Assn., 1988). In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. (See Sherbert v. Verner, 1963…; see also Everson v. Board of Ed. of Ewing, 1947…) A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith…

He then recaps Trinity Lutheran v. Comer (2017) and Espinoza v. Montana (2020) by way of demonstrating the Court’s recent fondness for free exercise, even when it means state funding of religious organizations.

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” By “conditioning the availability of benefits” in that manner, Maine’s tuition assistance program – like the program in Trinity Lutheran – “effectively penalizes the free exercise” of religion.

Roberts acknowledges that there are times when a state may be justified in excluding religious organizations from general laws or benefits, but that “this is not one of them.” For good measure, he brings in the issue of “parent choice” from one of the “voucher”-style cases the Court has tackled in recent decades.

As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. (See Zelman v. Simmons-Harris, 2002.) Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires…

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” … Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

That’s the part that’s going to bust open the dam sooner rather than later. In and of itself, it’s entirely reasonable and constitutionally sound. As far back as Everson v. Board of Education (1947) when the state of New Jersey reimbursed parents for bus fare as part of helping their kids get to school, the Court has been fine with a “general benefit” that just happens to benefit religious organizations as well. The city repairs roads which help people get to church. The police (theoretically) protect the faithful from bad guys while they pray, chant, or sing. Fire departments respond if a mosque or temple is ablaze. The Court insists this is the same basic thing.

Except that it’s not.

General Benefits vs. Funding Indoctrination

Enabling an institution to do whatever it does by providing public services is as neutral as government can get. Those road crews don’t jump in and do repairs on the sanctuary or mosque as part of their job because that would be “establishment” – active support of specific religious activities or institutions. For them to avoid maintaining any streets which pass near a church, however, would be to deny “free exercise” – actively making it difficult for believers to partake in whatever partakery is at hand.

What the Court has done in Carson v. Makin is a substantial step further. They’ve demanded that states providing any sort of choice or flexibility in their school systems must offer comparable support for religious indoctrination in place of some of that education. They’re requiring tax dollars designated for preparing young people to function competently in a modern, diverse, complex world, be redirected to teach homophobia, science denial, sexism, misogyny, alternative history, or whatever else might be trending that week in right-wing curriculums.

A Catholic hospital is primarily a hospital; it simply happens to have a lot of Catholics working there and easy access to clergy should one be so inclined. It is unlikely, however, that the medical care itself will be substantially altered by the theology of those in charge. (I realize there are some exceptions – particularly when it comes to reproductive rights – but I’m speaking in general terms.) When Medicare reimburses the hospital for medical services provided to qualified patients, the government is playing nicely with religion. It’s neither promoting Catholicism in any meaningful way nor excluding otherwise qualified health care professionals based on their beliefs.

You’ll notice, however, that there aren’t many hospitals run by the Jehovah’s Witnesses or Buddhists. Imagine that there were, and that you were rushed into the ER at either one after a serious accident. The JWs would no doubt do their best to care for you, but they don’t believe in blood transfusions, so… bad luck, there. The Buddhists believe that suffering is part of life and must be met with acceptance rather than complicated with medical technology and all that rushing around and beeping. Now imagine that the Court has just determined that if Medicare is going to pay for SECULAR treatment (like blood transfusions or life-saving technology), it must be just as willing to pay for ALTERNATIVE treatments like prayer, mediation, and denial of such worldly approaches. In fact, there will now be LESS money to pay for the worldly approaches so that your tax dollars may be spread more equitably among those freely exercising their own approaches to healing and happiness – snake oil, bloodletting, Ayurveda, trepanation, etc.

It’s an extreme example, sure – and I promise you I have absolutely nothing against the JWs or Buddhists. I just don’t want to pay either group out of my tax dollars to provide their own alternatives to modern medical care. Nor do I want to pay evangelicals to educate kids who a mere decade from now will be voting and making world-altering decisions about health care, the role of women in society, civil rights, foreign relations, and whether or not Jesus wants us to beat the sh*t out of the gay kids.

Did I mention that I feel rather strongly about this?

Private Schools Aren’t Meant To Serve Everyone

The lower courts accepted Maine’s use of this program as essentially a substitute for traditional public schools, but Roberts isn’t buying that even a little…

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” …

To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall pay the tuition . . . at the public school or the approved private school of the parent’s choice at which the student is accepted.” The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.

He’s not wrong. This was clearly the weak point in the state’s argument to begin with based on the direction the Court has been going with these sorts of issues for the past several decades. I don’t agree with many of those earlier decisions, but given that they’ve become pretty solid precedent, Maine should have seen this coming.

This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide.

Ironically, these are two of the primary arguments against “school choice” or “vouchers” as a valid means for improving education for all kids through competition – traditionally one of the primary talking points of the same folks currently giddy over this decision. Private schools always have and always will pick and choose their students, making comparisons to public schools largely meaningless. The “choice” being made is that of each school “choosing” who it will and won’t accept – NOT of parents choosing any school they like. Vouchers make private religious education more affordable for those wealthy enough to pay the difference; poor people are still left choosing from what their coupons will buy.

This decision seems likely to increase that disparity, beginning in Maine.

Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools… Participating schools need not hire state-certified teachers… And the schools can be single-sex… In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools.

I don’t believe the Chief Justice intended to echo some of the most common arguments against what counts as “school choice” in many states. He’s simply refuting the idea that these private school options are in any way “just another version of the state providing a public school education.”

Which to my way of thinking, of course, is the whole problem.

But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools.

Well, yes. Exactly.

The (Former) Wall Of Separation

This apparent “gotcha” is, in fact, the whole point. States don’t traditionally support religious education because they’re the state. Besides, prior to last week the establishment clause said that was a big no-no.

It’s this next bit, however, that might be my favorite of the entire majority opinion:

Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education” – meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like {the one in Maine} or in a party’s reconceptualization of the public benefit.

The thing is, if Montana’s voucher program had specified that religious schools were eligible as long as they made some token effort to provide “the rough equivalent of a Montana public education,” we could have avoided all sorts of problems. I might not love the idea of paying religious institutions to perform state functions, but it would at least maintain the principle that public education is intended to provide young people with a fairly consistent body of skills and knowledge and a general understanding of civilized society and their place in it.

Arguments about the fundamental purposes or priorities of public education are varied and endless, but whatever else schools are designed to do, we at least hope they prepare young people to function capably in the world. We hope they’re able to become educated voters, to form meaningful relationships, and to pay their bills and stay out of jail. Some approaches to religion support these goals, many others do not, but public schools make every effort to fulfill these functions without coloring too far outside the lines. It’s impossible to be effective and avoid ANY moral compass in a school setting; if we can’t lay some ground rules about honesty and responsibility and not being horrible to one another, there’s no way we’ll get far teaching them Algebra II. But we try to stay out of anything clearly in the purview of faith.

Religious schools do not return the favor. For many, their faith requires rewriting history, devaluing science, and the labeling of numerous “undesirables.” Free exercise has long meant the state doesn’t prevent those who so choose from indoctrinating their children in this way, whatever the long-term consequences, but for the past half-century at least the rest of us haven’t had to pay for it.

Until now.

The primary impact of Carson v. Makin won’t be limited to rural Maine. In this decision, the Court has stripped away any lingering distinctions between public funding of public good done by religious institutions and public funding of religious instruction, evangelism, or indoctrination. According to this Court, in fact, any distinction between the two is irrelevant. If a state supports a secular effort at promoting the general welfare, it must support religious endeavors which claim even a rough, unverifiable equivalence to those same goals.

It’s hard to imagine this will remain limited even to “school choice” programs. In principle, there’s no reason it should.

As of last week, it is no longer constitutional to distinguish between peer-reviewed history and the Book of Genesis or between medical science and mysticism when it comes to government funding. Public schools will continue to face heavy scrutiny and regulation, while all private alternatives must do to avoid accountability is include religious indoctrination as part of their function. According to the majority of justices, this places them above scrutiny by government bodies at any level thanks to the protections provided by the First Amendment.

I guess we should be glad it’s still doing SOMETHING.

Carson v. Makin (Analysis & Carrying On, Part One)

~ Blue Cereal

Fence of SeparationA few days ago, the Supreme Court announced its decision in Carson v. Makin, a case involving state support of religious education in rural Maine. The short version is that states which offer any sort of support for private schooling or alternatives to state-run public schools cannot deny equivalent support to religious institutions claiming a comparable role. These institutions need not follow state curriculums or abstain from indoctrination. They may pick and choose their students on any basis they like and may teach what they like, however they like, and still get paid by the state for each student they choose to accept.

The language of the decisions does not specifically prohibit states from instituting some general academic standards; the two schools in question were both on the “approved” list of state options. (They “count” as schools for purposes of students earning a diploma but did NOT qualify for state reimbursement due to their religious focus.) Then again, the Court showed little interest in the quality of education provided by any of the schools discussed in this case. Unlike in many previous cases (particularly Zelman v. Simmons-Harris, 2002), which validated an Ohio “vouchers” program largely based on the apparent underperformance of public schools in the state and established “parent choice” and the constitutional “breaker switch” between government funding and religious application), the issue isn’t even discussed.

I know, I know – “academic quality” isn’t a First Amendment issue. Religious freedom IS. Nevertheless, previous Courts have often demonstrated at least token concern for outcomes – for the likely impact of various decisions either way. This particular Court is so enamored with taking “free exercise” to Chuck E. Cheese’s that it’s left “establishment” locked in the back seat without even cracking the windows.

Also, I may have strong feelings about this one.

I wrote about this case a few days ago and linked to some very good breakdowns of the decision and its likely impacts. Here, I’d like to highlight a few specific elements from the majority opinion, written by Chief Justice John Roberts. This may end up broken into several parts depending on how carried away I get.

Most of the cases cited by Roberts, as well as those referenced by Justices Breyer and Sotomayor, are covered in some detail in “Have To” History: A Wall of Education, which I’m sure you’ve all recently ordered and read in preparation for this term. If so, you know that when I’m writing for publication, case summaries are relatively balanced and my tone largely rational. My goal is to offer useful references and accessible explanations to a wide possible audience.

That’s not always the case here on the blog. You have been warned.

A Little Background…

The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general. These first two clauses are often in tension with one another, but taken together clearly indicate a desire by the Framers that government do its best to avoid promoting OR hindering religious beliefs or behaviors.

The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be. There are a handful of influential voices, however, who really hate this metaphor and believe it misrepresents the intent of the First Amendment.

The Fourteenth Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the Fourteenth Amendment is known in legal circles as “incorporation.” It’s why the Supreme Court will hear a case involving Maine citizens and Maine public schools when it involves a fundamental right like those covered in the First Amendment.

The Fourteenth Amendment also explicitly prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” This one can be a bit redundant, but it’s often thrown in with whatever specific complaints are at the heart of cases like this one to emphasize the idea of unfair treatment – in this case, against the families wishing to sent their children to religious high schools.

Alright, let’s get to it. These excerpts of the Supreme Court’s written opinion have been edited and formatted for readability. I’ve done my best to maintain appropriate context and intent. You can read the full decision as originally written here.

The Majority Opinion (Some Of It, Anyway)

Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:

Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education” and that the required schools be operated by “the legislative and governing bodies of local school administrative units.” But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.

Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children…

Get used to seeing “SAU” for “school administrative units.” This is a term used to avoid getting bogged down by any distinctions between “districts” or “counties” or “school corporations,” etc.

Notice the root of the issue here is that Maine doesn’t actually have public high schools operating in something like half the state. There are logistical reasons for this (who knew Maine was THAT rural?), but it’s an important issue because it means parents in those areas are effectively required to utilize “school choice” if they want their children to receive an education (and they’re not up for homeschooling). Once “parent choice” is in the mix, it’s much more difficult for the state to limit which institutions can and can’t take those “vouchers” – in whatever form the funding takes.

To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law. The school must either be “currently accredited by a New England association of schools and colleges” or separately “approved for attendance purposes” by the Department. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1… In schools that qualify for the program because they are accredited, teachers need not be certified by the State and Maine’s curricular requirements do not apply…

Note that Roberts is summarizing the existing legislation in Maine, not issuing requirements. He covers a few more details and points out that the state does not automatically exclude schools associated with a religious institution but instead considers their mission and methods. In other words, Maine apparently made a distinction between schools which happened to be religious and those actively promoting specific doctrines, values, and opinions of others as part of their daily efforts.

In 2018, petitioners… alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment as well as the Equal Protection Clause of the Fourteenth Amendment. Their complaint sought declaratory and injunctive relief against enforcement of the requirement…

While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue (2020)…

I told you you should have read the book, didn’t I? Here’s the short version of Espinoza…

Montana provided tax credits to donors who funded “Student Scholarship Organizations,” which would in turn help pay private school tuition for qualifying families. (Some states like to further obfuscate these by calling them “educational savings accounts” or some other such nonsense.) Because Montana’s state constitution prohibits the use of public money to support religious institutions (a provision common to many state constitutions and known informally as the “Blaine Amendment”), the Montana Department of Revenue declared that the program must exclude religious schools. The Court determined that excluding religious schools from the program violated the Free Exercise Clause of the First Amendment. Any program available to other institutions must be available to religious groups on the same terms, no matter what state constitutions say.

Because smaller, less oppressive government means crushing state autonomy whenever it serves the agenda of entrenched economic, cultural, and political power.

The First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza. First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity – a status that in and of itself does not determine how a school would use the funds” – Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.” Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.”

Lawyers arguing for Maine had two basic choices: insist that the Court overturn its own recent precedents, or insist that this case was significantly different than those cases. Apparently, they focused on the latter and persuaded the lower courts of this distinction. The First Circuit determined that unlike in cases involving “school choice” or “vouchers” or “educational savings accounts” or whatever, Maine COULD limit where its tax dollars were being spent because the schools in question were serving as proxies for traditional public schools.

The Maine Problem

In my humble opinion, this was the weak link in the state’s reasoning. Maine unwittingly offered activists a technical crack in a much larger dam, and this ideologically driven Court is perfectly happy to play sledgehammer. That’s why conservative talking heads around the country are able to shake their heads in smug amusement at the “overreaction” by the left to this decision. They know the dam is coming down. We know the dam is coming down. The Court has been looking for the opportunity to bring the dam down for years now and said as much to anyone paying attention. In the meantime, however, we’ll have to endure the mockery and faux pity of those working so hard to knock down this particular wall as they laugh at us for thinking the dam is about to come down when of course that’s just silly and not what this case says at all.

Don’t let it get to you; in a few years, when the wall is largely washed away, these same folks will rewrite the timeline in such a way as to either condemn the wall having been built in the first place or to blame us for knocking it down while those on the right worked vigorously to defend it. Might as well roll with it, baby.

Of course, a crack doesn’t require elimination of the entire wall. Had they wished, the Court could have taken a far more moderate approach. We’ll pick up there next time.

Stanley Cup Economics

~ Blue Cereal

The Stalingrad Cup

#GoAvsGo

The Colorado Avalanche just won the Stanley Cup for 2022. Tampa Bay took them to six games, and for a while I was beginning to think the Bolts were going to pull off a miraculous comeback from being down three games to one (in a best-of-seven series). But the Avs pulled it off.

I should have known. No team has managed to win the Cup three years in row since the early 1980s – forty-some years ago. Today, such a feat would be all but impossible; major kudos to Tampa Bay for coming so close. In the past few decades, the National Hockey League has instituted a few rules intended to keep the game competitive and prevent the sort of dynasties which used to be the norm. The downside of such dynasties, of course, is that for every team coasting alone eternally on top, there are several at the bottom without much chance of improving in a timely manner. Some didn’t survive at all.

There were 21 teams in the 1980s. If you weren’t the NY Islanders or one of the teams from Canada, however, there wasn’t much point in even lacing up your skates. The 1990s got a little better, but teams continued to fold up in one city and move to another, hoping for better results and a stronger return on owners’ investments. Teams able to generate enough revenue stayed on top, while teams not already in the upper echelons struggled even to exist.

As it turned out, unrestrained “capitalism” wasn’t that good for hockey as a whole – not for the fans, not for the players, and not even for the teams riding along at the top. With less competition, teams and players had less reason to get better. Those on top didn’t really have to, and those on bottom often lacked the resources to effectively compete.

Sound familiar?

True Meritocracy

From 2006 (a year whose significance I’ll explain in a moment) to 2022, on the other hand, the Stanley Cup has been awarded seventeen times. Eleven different teams have claimed hockey’s top prize in that time span, none of them more than three times and never more than twice in a row. Ten more teams made it to the finals at least once during that time frame, meaning more than two-thirds of all NHL teams (there are currently 32, but two of those have been added in the past few years) have had the Cup within their reach since George W. Bush won a second term.

Every single team that existed in 2006 has made it to the playoffs at least four times – one season out of four. It’s genuinely unpredictable from year to year who’s going to make a serious run.

The Montreal Canadians (bless their hearts) made it all the way to the finals in 2021 but didn’t even make playoffs this year. My Dallas Stars (who live to hurt me) made it all the way to the finals in 2020, didn’t make it into the playoffs at all last year, then squeaked by to lose in the first round this season. The Vegas Golden Knights recently fired their coach after not making the playoffs for the first time in their existence. They’d made it all the way to the finals in their first season as a team (2017-18), so expectations were a bit high. 

In short, there are no teams whose fans have no reason for hope ever again, and no teams able to feel particularly secure about their place in the hockey hierarchy – at least not for long. There’s simply too much equity in the league.

Salary Caps and Floors

In the early twenty-first century, the NHL wanted to institute a cap on player salaries which would be tied via fancy math to league revenues. Players, some of whom had been making pretty good money under the old system, naturally resisted. The resulting dispute ended up cancelling the entire 2004-2005 season. Plus, people said hurtful things to one another and days grew dark and cold.

In the end, the players, owners, and league emerged with a compromise in which each season the league places a cap on how much each team can spend on player salaries IN TOTAL. There’s no individual limit, but even with star players on your roster, you have to have enough warm bodies with sufficient talent to compete. Connor McDavid makes more than Colton Sceviour, but it would be difficult for any other team to outbid for his services (even if he didn’t have a lengthy contract) without sacrificing key pieces of their own. The cap forces a rough equity between teams without preventing top talent from making big, big money.

With the cap came a salary MINIMUM as well. Some teams (*Toronto*cough*cough*) had discovered that they could fill their roster with the cheapest players possible and still pack stadiums despite rarely winning a game. That doesn’t work anymore; the system requires each team spend at least a set amount of dollars on player salaries each year.

Team members who are injured still get paid. Weak players can’t simply be fired until their contract with the team expires, meaning there’s great motivation to work with players to help them improve their game rather than simply cutting them loose. If traded, the terms of a player’s contract must be fulfilled by the receiving team.

Teams are “protected” under league rules as well. As with most sports, the system by which draft picks are selected each year favors the worst-performing teams. While there’s still an element of chance in the mix, struggling teams largely snatch up the best up-and-coming players, thus ensuring that more often than not, they’ll be back in the hunt within a few seasons. In the meantime, their fan bases have hot new talent to be excited about and buy tickets and merchandise for.

It’s still possible for individuals to fail or for teams to collapse. It’s just that there’s so much more genuine opportunity for them to succeed before that happens.

A Bigger Zamboni

It’s funny the league has evolved this way, since when it comes to life off the ice, we’re constantly assured that anything designed to promote equity, or to “level the playing field,” or to promote opportunity, must do so by damaging quality and punishing success. It’s become something of a religious doctrine among many Americans that those on top become effectively untouchable by ethics, the legal system, or the business cycle, while those at the bottom deserve whatever they get.

To rationalize such convictions, we insist against all evidence that anyone willing to make the effort can rise to the top. Just as weirdly, we teach in economics and history classes that those who’ve reached elite status can easily fall based on poor choices or other changes in circumstances. We ascribe hard work and good decisions even to their offspring and their offspring’s offspring, no matter how little they accomplish or what damage they do. In so doing, we must repeatedly deny the reality around us. (Fortunately, Americans are particularly gifted at such things.)

Professional athletes are, by definition, the best of the best. Most work very hard to get to where they are and even harder to stay there. It would seem only logical that the same sort of laissez-faire competition apply within their respective fields. What better place for pure Social Darwinism to provide us with the maximum amount of entertainment through excellence?

Except it doesn’t – not fully. Competition is still central to pro sports, both individually and as teams. But within that framework are guidelines which ensure the sport remains competitive – that last year’s success doesn’t automatically translate into this year’s dominance with less effort and without fresh new accomplishments. In short, the NHL, like many professional sports leagues, applies a healthy dose of socialism to its rules in order to benefit the whole.

Nothing symbolizes this better than the Stanley Cup itself, awarded to the winning team each year and inscribed with their names. They may do with it as they please for the next twelve months, but come next spring, it’s up for grabs again. This year’s success is insufficient to secure next year’s rewards. Your name will remain on the Cup for a time, but eventually even that will be replaced by a new generation. There are no Trumps, Hiltons, or Kennedys in hockey.

Dogma vs. Data

So, to recap – a relatively free system of capitalist hockey was replaced in 2006 by strict rules regarding team spending, strong worker protections, and policies to ensure that genuine competition exists each season. Being on top no longer gives you the power to lock in the best talent indefinitely or crush the guys on the bottom in any sort of lasting way. Being on bottom means you get extra help from the system to improve. The most successful workers are certainly rewarded, and those who don’t perform will eventually lose the gig. But both rising and falling take time, and no single owner or coach or general manager can make or break a player for an extended time using their positions or their checkbooks.

Like I said – socialism. Heavy bureaucratic regulation inflicted from what is essentially a central government and a workers’ union with enough power to shut down entire seasons if unhappy with the terms being offered. Restrictions on “success” and rewards for “failure.” Surely hockey as a sport has become a shallow mockery of its former self since 2006!

Except that it hasn’t. Viewership continues to trend up year after year. Ticket sales are strong in almost every market. Players get better and better with every wave of young talent; moves which used to be reserved for skills competitions or YouTube videos are becoming normal parts of the game. Somehow, all this “regulation” and oppressive “limits” have made hockey better – for fans, for players, for markets, for media, for everyone.

Hockey is not the economy at large, and professional athletes aren’t the guy trying to keep his shop open over on 11th street. It’s a limited analogy, to be sure. But in a market and a business model which literally relies on competition and allowing the best to rise to the top in order to maintain both credibility and profitability, experience suggests that reasonable limits and regulations designed to protect workers within reason, promote a degree of equity and ongoing competition, and limit the ability one generation’s “winners” to pull up the ladder and hide in their treehouse, might actually be good for the game as a whole.

Just something to think about.