To Sleep, Perchance To Sue…

January 23, 2021June 4, 2023 ~ Blue Cereal

I’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases which focuses on cases related to church-state issues in education. Unlike this blog, the book is intended to be a relatively neutral resource, focused on breaking down cases into plain, simple English with a little historical context and references to related cases rather than a parade of snark and hyperbole designed to throw blue meat to the liberal masses.

I mean, I’m keeping a pithy comment here and there just to give it some color, but I’m hoping for something damn near professional by the time it’s done. As I get to cases decided in this century, however, things get increasingly poignant and at times potentially pungent. Many of the justices writing these opinions are still on the bench, and it becomes increasingly difficult to frame the issues as foundational for current jurisprudence – because they ARE current jurisprudence.

This particular case involves the hiring and firing of private school teachers in religious schools. What I’m currently wrestling with is an apparent contradiction between how the Court treats private religious schools when it comes to school choice (“hey, these are just schools doing school things for valid school reasons like any other schools, except they happen to have a religious point of view… give them all the tax money or it’s religious discrimination”) and how it treats the same religious schools when they’re firing teachers for being old or getting sick (“hey, these are religious institutions whose whole function is spreading their faith… you can’t hold them accountable for anything they do or else it’s religious discrimination”). Now, let me be clear – I realize it’s certainly not that simple. The devil is in the–

Actually, that’s probably not an appropriate idiom with this specific topic. Sorry about that.

The point is, despite what my Twitter feed and periodic ranting might suggest, I doubt it’s as black and white as my summary above. What I’m not yet certain of is exactly how not black and white it is. That will require a little more reading of people smarter than me and – realistically – some waiting to see what the courts do going forward. What is clear is that relgious schools occupy something of a paradoxical zone in which they’re being granted increasing benefits at the expense of public education while being held to fewer standards or expectations. They’re benefitting from both the “valid, secular” function they claim to serve and from their religious status and mission, which is generally proclaimed as their top priority. Those two things needn’t always be in conflict, but let’s be honest – in the 21st century, they very often are.

In any case, let’s get to it. Here’s my current draft of “Worth A Look: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012).” Could there be a catchier title?

Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.” In fulfilling these responsibilities, Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning. As a source of religious instruction, Perich performed an important role in transmitting the Lutheran faith to the next generation.
In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception…
It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects… The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities…
Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer…
The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission… [T]he First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
(from the Court’s Majority Opinion, by Chief Justice John Roberts)

Cheryl Perich was a teacher at Hosanna-Tabor Evangelical Lutheran Church and School. Hosanna-Tabor classified its teachers as either “called” or “lay” instructors, preferring those “called” but accepting “lay” when necessary to fill positions with qualified candidates. Perich began as a “lay” instructor, but was asked to consider becoming “called,” which she did. The process required several theology courses, extra religious training, and approval by the larger church body. Her daily duties didn’t noticeably change, but she was at that point considered a “commissioned minister” of the church.

Perich was diagnosed with narcolepsy and missed part of the 2004-2005 school year. After extended sick leave and approval from her doctor, she notified Hosanna-Tabor that she was ready to return in February. By that time, the school had hired a long-term sub and suggested maybe she wasn’t as ready as she thought. They offered to pay part of her ongoing health insurance premiums if she’d retire without making a fuss, and her principal hinted she was probably going to be fired anyway so why not take the deal – and her narcolepsy – and make things easy for everyone, K?

She didn’t.

Perich informed Hosanna-Tabor that she’d spoken to an attorney and that according to the Equal Employment Opportunity Commission and the Americans with Disabilities Act, they couldn’t fire her for having narcolepsy. Hosanna-Tabor replied that shut-up-yes-we-can, and besides, we’re not firing you for having narcolepsy – we’re firing you for talking to a lawyer about us firing you for having narcolepsy. That was, they explained, very hurtful to their working relationship and thus against church policy.

Unlike, for example, firing someone for having narcolepsy.

As the case moved through the court system, the central question wasn’t so much whether Perich had been fired for having narcolepsy or for not wanting to be fired for having narcolepsy. It was instead the question of whether or not she qualified as a “minister” in the eyes of the law. The First Amendment’s religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”) are traditionally understood to prevent government from getting involved in almost any issue related to church leadership or internal decisions regarding ministerial personnel. The history behind the First Amendment is simply too steeped in state control of or interference with official church leadership back in the proverbial day.

If Perich qualified as a “minister,” then Hosanna-Tabor didn’t have to prove they had just cause for terminating her; they merely had to prove that it wasn’t the court’s business what their reasons were – insubordination, violation of church policy, or simply that Jesus doesn’t like narcoleptics, it was a church matter. Period.

The Sixth Circuit Court which heard the case before it was appealed to the Supreme Court focused on Perich’s actual daily duties. Most of her time and energy seemed to be spent on teaching, with only a small portion of each day devoted to, well… devotion. In this sense, her job was very much like most teachers, including the “lay” teachers not labeled “ministers” by the church. The Supreme Court disagreed with this approach, insisting they must instead defer to the church in matters related to ministry – whatever the math might suggest. Perich had accepted a specific pathway to become “called” and taken on the title of “minister.” She filed as a minister on her taxes and spoke as someone commissioned by the church prior to being fired.

If it looks like a minister, walks like a minister, and talks like a minister…

The Supremes ruled for Hosanna-Tabor and tried to keep its decision narrowly tailored to the specific circumstances before it. Eight short years later, in Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court would cast such subtleties to the waves and rule that pretty much anyone a religious organization wanted to label a “minister” – even teachers in their private schools who had no other ministerial role or title – could be hired, fired, or otherwise handled at the discretion of the church without recourse to legal protections. The specific fallout from this has yet to be seen.

I’m Not Sure I Want My Students To Succeed

December 16, 2020June 4, 2023 ~ Blue Cereal

I’m not sure I want my students to succeed.

How’s that for an attention-grabber? Now I’ll skillfully jump back and lay the foundation for such an outrageous claim and hope it’s enough to keep you reading until we reach it again further on.

Four-Point Scale or Back Hoe?

The question of how to grade, what to grade, or even IF to grade isn’t exactly new in the world of public education. Sometimes it’s set by building or district policy (although enforcement is problematic at best). Other times it’s at least discussed within departments. By and large, however, it’s something no two teachers seem to do quite the same.

Many of the differences are cosmetic. Categories or total points? Are quizzes worth 10% or are they worth way more points than daily work and the math ends up with pretty much the same results? Other differences are philosophical. Completion or accuracy? Effort or quality? Improvement or achievement?

Things quickly get messy. If I grade entirely on objective standards, the kid who rarely shows up and never participates but has a great memory might pull a solid ‘B’ in my class without actually learning anything or becoming less odious to the world at large. The girl who does everything I ask and shows massive improvement still fails if she started off with less knowledge and fewer skills. On the other hand, points for effort sometimes seems like we’re rewarding mediocrity – or worse, giving pity points to kids who have no business moving up a level academically.

In other words, you don’t have to go very far before you realize several things about grades in high school. First, they don’t usually mean everything we hope and pretend they mean – particularly not from one class to another. Second, they’re almost impossible to get rid of. They’re so baked into the system that even districts bold enough to try alternatives usually end up using some form of an A – F, 4.0 scale when communicating with the state or post-secondary institutions.

Finally, and perhaps most significantly, any discussion of grades or grading quickly becomes a discussion about priorities and overall teaching philosophy as well. It reveals our assumptions about kids, about education, about “the system,” and about our own ability to accurately observe and assess specific skills or chunks of learnin’ in otherwise complicated beings – teenagers.

Our Rubric, Which Art From Heaven…

I’ve worked with amazing educators who believed that a 59.4% was the highest ‘F’ you could earn, so congrats on that. This wasn’t some sort of revenge for being bullied as a child; it reflected a larger conviction regarding expectations, opportunity and responsibility. I’ve heard anecdotes about teachers who announce on Day One that everyone’s getting an ‘A’, so let’s just focus on learning! I can’t imagine this actually working very often, but it’s not founded on laziness; it’s founded on a set of ideals about what education should look like.

Emphasizing quizzes and tests over daily work is more than a calculation; it reflects a philosophy about how things work (or should). The opposite is equally true. Prioritizing completion and effort and showing up every day over performance on formal assessments is about underlying beliefs. The whole “standards-based grading” movement is merely a variation on this theme – are we actually measuring whatever it is we think they’re supposed to be learning?

This means, of course, that we can’t really talk about grading until we talk about what it is we’re trying to measure. This is standard edu-blogging clickbait; I’m not breaking any new ground here. But it’s always worth revisiting the question of what, exactly, it is we think we’re supposed to be teaching. Only then can we wrestle with whether or not our grades actually correlate.

Birth of the Blue

My very first blog post opened this way:

If you want to completely derail any meeting of three or more educators – teachers, administrators, curriculum coordinators, outside consultants, or whatever – ask what our priorities should be.
You know, as educators – what are our priorities for the kids? It’s hard to make a good plan without a clear target, so what are we trying to accomplish – you know, ideally?

It was a relatively brief post (hard to imagine now, I know) addressing the difficulty of actually narrowing down our goals as educators. Do we prioritize content? Academic skills? Mindset? Grit? Job skills? Personal hygiene? The ability to work with others? Reading? Writing? Critical thinking? Citizenship? Not putting your entire email in the subject line?

Schools are expected to be at least three dozen different things simultaneously, plus whatever else people think of along the way. (That way, no matter how many things we’re doing well, there are always something for which we can be labeled complete and total failures.) Let’s assume we’re already doing our best with legislative mandates and district goals. These things are generally insufficient, however, to shape the day-to-day details of HOW we teach, let alone WHY we teach.

That’s what I’m wrestling with at the moment.

Success Secession

One of the top 3 or 4 reasons commonly given by teachers for why we do what we do is our desire that students succeed – not just in our classes, but in the so-called “real world.” We have this idea that success outside of school requires the sorts of mindsets and skills we traditionally value. Personal responsibility. Professional appearance. Work ethic. Good citizenship. Effective collaboration. Subject knowledge. Appreciating other points of view. Communication skills. Not smelling weird all the time.

I’m not sure these skills are as universally useful as we’d like to think.

I love Amazon, but is Jeff Bezos insanely rich because of how much personal responsibility he takes for his employees or his commitment to interacting fairly with other entrepreneurs? Does Mark Zuckerberg’s success demonstrate a commitment to good citizenship, honesty, or owning one’s choices? Are the Koch Brothers doing so well because of how respectfully they tolerate other points of view, or is it mostly their belief in democracy and the fundamental equality of all citizens?

Was Donald Trump elected President because of his work ethic, or was it more about his impressive command of relevant facts? Has he been so wildly influential because of his professional communication skills and ability to work well with others, or because he’s learned to show up on time and meet deadlines? The most powerful individual in the world has absolutely none of the skills or basic knowledge we push in public education – and shows zero interest in learning any of it. He is the personification of printing off your essay from Wikipedia then arguing vehemently that you wrote it even though the URL is still at the bottom of every page. The only difference is that Trump essentially became valedictorian as a result and half the school board is now questioning whether your teaching certificate is even real.

He may be the most outlandish example, but he’s hardly alone in his approach.

Studies suggest that overly confident (but largely incompetent) men get promoted far more often than counterparts who actually know stuff and demonstrate effectiveness at their jobs. It’s increasingly difficult to argue that political leadership requires real historic or legal understanding. Our cultural and political trend-setters and thought-leaders may include a few of the best-and-brightest, but they’re hardly the norm. Classrooms still hold up Abraham Lincoln and MLK as American heroes, but real success stories in the 21st century are about Übermensch more than emancipation.

“I have a scheme today… Me at last, me at least, like God Almighty, all for me at last!”

The Better Angels of Our Pedagogy

If we really want our students to be successful, perhaps we should be teaching them complete and total shamelessness – how standards, ethics, or consistency are merely chains to hold them back. We could offer lessons in race-baiting, gas-lighting, and general sophistry. We could teach them how to focus so intently on money and power that they don’t care who they use up or discard to get there, and that legal limitations are for poor people. At the very least, no child should be given a high school diploma without first demonstrating basic competence in manipulating the fears and insecurities of others to sell products or secure influence.

I’m not suggesting that all business owners are evil – merely that being responsible and smart and hard-working aren’t exactly requirements for success in the 21st century. (They may actually be disadvantages if taken too seriously.) Aren’t we doing our students a severe disservice if we refuse to be honest or practical about what success too often looks like in the “real world”?

The alternative, of course, is to continue inflicting our own narrow, idealistic views of how things should work, in hopes they might eventually come true. If that’s what we decide, that’s fine, but let’s be honest about what we’re doing. If what we’re actually teaching is a higher ideal for how society could be, and how capitalism could work, and what success could look like, let’s own that instead of hiding behind “real world” rhetoric. We may not win that argument, but we’ll at least be striving for something better.

I don’t love the real world at the moment. I don’t want to be responsible for preparing kids to “succeed” in it if that means they become more like those currently at the top. I’m willing to risk criticism from the powers-that-be and the perpetually victimized right wing to promote a higher ideal – one built on our founding documents and our national potential more than our Fortune 500 or modern politics.

So… I guess I do want my kids to succeed. I’d just like them to first question what they believe counts as “success.”

Lessons From Pandemic Teaching

December 7, 2020June 4, 2023 ~ Blue Cereal

We’ll soon hit a full year of trying to figure out how public education works (or doesn’t) during a pandemic. Some of the experience gained may be specific to 2020 – the social and political dynamics of which have not been even remotely encouraging (see what I did there?). I’d respectfully suggest, however, that many of the “lessons” learned along the way apply to most forms of remote, virtual, or online “education,” whatever the surrounding climate.

I’ve numbered them in order to make my observations seem more carefully weighed and thoughtfully considered. Seriously, doesn’t even the illusion of someone having a coherent plan and consistent ideology seem insanely comforting these days?

#5: States and Some Districts Are REALLY Committed to Testing and Pointless Paperwork

One of the most crippling aspects of long-distance learning is what it does to our ability to “connect” with students, individually or en masse. The thing most of us signed on for – that idealistic, touch-lives-and-help-kids stuff – has been reduced to the point of near-extinction. What remains strong, however, is the bureaucracy and nonsense we’d mostly learned to tolerate. It’s always been annoying, but it’s traditionally been overshadowed by the meaningful bits.

Not this year.

Many districts are plowing ahead with “virtual PD” and hoping that if they simply require enough documentation of, well… everything they can think of, engagement will somehow soar and distance learning will no longer be a disaster. Kids being at home will be just like them being at school, and we can think happy thoughts and click our heels together until AYP is met!

The centerpiece of this delusion is the conviction that THE TESTING MUST GO ON. Standardized state assessments, sketchy endeavors in the best of times, have long claimed their primary function is to “assess student learning and growth.” Supposedly the resulting numbers help direct instruction; as a bonus they can be twisted like balloon animals into some sort of marker of teacher ineffectiveness as well. (Why did you not learn them harder?!)

Standardized testing has never done much to account for culture, poverty, circumstances, or anything else – but its complete disregard of reality has truly reached new heights this year. WE MUST MEASURE THE GROWTH of students who are no longer coming to school, many of whom don’t have internet, others of whom lack self-discipline, stay-at-home moms, or sufficient protein, all so we can… know what, exactly? What are we even pretending to measure right now?

It’s the most cynical sort of sophistry. We might as well have them take the tests while strapped to various amusement park rides or with Tiny Tim at dangerous volumes on infinite repeat. The validity of such “testing conditions” would be far more defensible than pushing ahead this year.

#4 Bipolar Teacher Disorder

Personally, I’ve always had a soft spot for the semi-dysfunctional, over-committed educator. Sure, they’re repeatedly taken advantage of, and they often operate out of insecurity or guilt at being unable to save every last child – but they’re so sincere and adorable while they’re doing it!

Even relatively stable, well-adjusted teachers, however, are beginning to manifest what I think of as “bipolar teacher disorder.” It’s a natural result of the pendulum of thoughts and emotions inherent in trying to reach disengaged populations long-distance. The internal dialogue often goes something like this:

“I’ve got to do more to engage and challenge these kids! They deserve a quality edu—“
“CAN THEY SERIOUSLY NOT LOG IN FOR 10 MINUTES AND AT LEAST USE THE BUILT-IN MIC?!? I FEEL LIKE A DANCING BEAR REPEATEDLY PAUSING FOR THEM TO TYPE ONE-WORD RESP—“
“My poor babies. It’s not their fault this is happening. Most would rather be here! School really is the most structure and approval they’re likely to get most days, not to mention—“
“WHAT DO YOU MEAN YOU CAN’T OPEN IT ON YOUR PHONE? THE SCHOOL ISSUES YOU A CHROMEBOOK! THEY’LL PICK IT UP AND FIX OR REPLACE IT FOR FREE, REPEATEDLY! I MADE 27 TRAINING VIDEOS TALKING YOU THROUGH HOW TO DO THIS! YOU WANT ME TO COME TYPE IT FOR Y—“
“My God everyone on Twitter is rocking virtual education and doing all of these cool projects and discussions and – they’re using breakout rooms? And it’s working? Yeah, I suck. I’ve failed my students when they need me most. I might as well start handing out vouchers personally…”
“YOU WANT ME TO EXPLAIN THE ASSIGNMENT TO YOU? IN AN EMAIL? WHAT AM I GOING TO SAY THAT’S NOT IN THE SLIDESHOW I POSTED, AND IN THE VIDEOS OF ME EMBEDDED IN EACH SLIDE TALKING THROUGH IT, AND IN THE EXAMPLE I DID FOR YOU TO—“

You get the idea. The ping-ponging between guilt/inadequacy and frustration/discouragement may actually produce real-life concussions.

#3 Every Teacher Is Different. Every Classroom Is Different.

This has always been true. There are strategies, lessons, and mindsets that are often far more useful or successful than others. There are things that are almost always a bad idea, no matter what the specifics. Generally speaking, however, it’s important to distinguish between “here are some things that have worked for me in such-and-such situation” and “here’s what good teachers do if they want to be effective (or at least more effective than you).”

This reality has been dramatically magnified by virtual (or blended) learning. Kudos to those of you working wonders on the small screen. Many of you had to overcome repeated struggles and frustrations to get there. That doesn’t mean those still mired in pointlessness are lazy or lack talent. It’s more likely they have different kids, different circumstances, or different strengths.

Keep sharing what’s working. Celebrate others’ successes or breakthroughs. But let’s not forget that this whole situation is stupid and not at all what we signed up for. It’s not a moral failure when we can’t make the magic happen.

#2 The “Problems” With Public Education Are Huge Advantages

We all know the litany of failures attributed to the standard 20th century public education model. Students are run through a “factory system.” There’s not enough differentiation. The rooms are too square, the schedules too rigid, and the instruction too direct. Online, self-paced, n0-walls education was supposed to free our poor, victimized children from this outdated torture.

For a handful of kids, it absolutely has. I have several students I’ve never met who are knocking this year out of the park. They love the flexibility and hate the chaos and inconvenience of in-person school. These outliers spend a few hours in the morning knocking out work and touching base with their teachers, then read or play or watch documentaries about food in other countries the rest of the afternoon. More power to them.

But most kids need that face-to-face time to flourish. You know things are bad when all the same politicians and talking heads who’ve been working diligently for years to get kids out of our rooms and in front of someone’s software eight hours a day are suddenly lamenting kids being out of our rooms and in front of the screen for eight hours a day. If we’ve learned nothing else this year, hopefully we’ve rediscovered the value of teacher interaction for actual learning to consistently occur. We’ve sorely missed proper small group discussions and kids having to learn how to deal with one another like we all live in the same world together or something.

Parents have been confronted daily with the shocking reality that their children are not naturally hungry for knowledge or motivated by where they may or may not be accepted to college in a few years. Some kids care for intrinsic reasons, and some desperately want to please their parents or compete with their friends. But many many many of our darlings learn because we woo them. We cajole them. We trick them. We engage them. We entertain them, scare them, love them, push them. It’s an art as much as it is a science. Every educator knows this.

None of us were really surprised that it’s just not the same when kids are at home working “at their own pace” and the best we can do is video in from time to time. That didn’t make it less discouraging.

#1 It’s All About Resources

In districts with lots of technology and support, the twists and turns have generally gone better than in districts without. In districts where kids already had reliable internet at home and parents with basic online communication skills (the bulk of the email goes in the BODY, not the SUBJECT LINE), etc., things have been a little easier than in districts where half the kids don’t have heat – let alone reliable wi-fi.

Sure, there are always a handful of plucky souls who overcome, and they’re absolutely worth celebrating. But there are always a handful of football players who make the NFL and a handful of musicians who win Grammys. Pointing to Patrick Mahomes or Billie Eilish as proof that “anyone willing to put out a little effort can do it” is either delusional or deceitful. Pointing to districts whose teachers and students are finding all sorts of creative ways to make it work is absolutely appropriate in terms of celebrating their success and learning from their efforts. They make poor guides for critiquing districts with whom they have little in common, however.

Your Ticket-Out-The-Blog

So, what did I leave out? What did I get wrong? More importantly, of all my wit and pith and insight, which parts made you love me the most?

Comment below and let me know what you think. If you like, you can document it and count it towards your virtual professional development.

RELATED POST: Teacher Tired

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Three

November 14, 2020June 4, 2023 ~ Blue Cereal

I’m discovering as I continue to draft a follow-up to “Have To” History: Landmark Supreme Court Cases that it’s more and more difficult to keep things succinct as subject matter nears the 21st century. I’m sharing a few rough drafts along the way partly in hopes a few of you, my Eleven Faithful Followers, might find them interesting, and partly because nothing highlights the problems in a text like posting it live for all the world to see.

Some version of this Talmudic Tale will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct.

Recap of Parts One & Two: Kiryas Joel was (and is) a community of particularly insular Hasidic Jews (the Satmars) in New York. Most of their children attended private religious schools, but they asked the state for assistance providing care and education for their special needs children. Initial efforts to serve these particular children rand into conflict with recent Supreme Court rulings which struck down several public school efforts to serve high needs kids in religious institutions. New York responded by allowing the Satmars to create their own neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries. The Supreme Court struck down this arrangement in a 6 – 3 decision, but even majority justices had differing ideas as to the specifics. The arrangement violated the Establishment Clause. Beyond that…

Justice O’Connor’s Concurrence (and Advice Column)

Justice O’Connor (concurring in part and concurring in the judgment), took the same “you know what you should have done?” approach as she had in Wallace v. Jaffree (1985):

The question at the heart of this case is: what may the government do, consistently with the Establishment Clause, to accommodate people’s religious beliefs? The history of the Satmars in Orange County is especially instructive on this, because they have been involved in at least three accommodation problems, of which this case is only the most recent…

O’Connor walked readers through these accommodations, lamenting the Court’s decisions in Grand Rapids and Aguilar along the way. It wasn’t a purely historical journey; she was leading up to something.

There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation. New York may, for instance, allow all villages to operate their own school districts. If it does not want to act so broadly, it may set forth neutral criteria that a village must meet to have a school district of its own; these criteria can then be applied by a state agency, and the decision would then be reviewable by the judiciary.
A district created under a generally applicable scheme would be acceptable even though it coincides with a village which was consciously created by its voters as an enclave for their religious group. I do not think the Court’s opinion holds the contrary.

Want to guess how Kiryas Joel schools operate today? (Come on, take a guess!) It took a few versions before one eeked through federal court approval, but New York eventually figured out how to write a law that only applied to Kiryas Joel without mentioning anything in it that made it clear it could only apply to Kiryas Joel. Thanks, nice judge lady!

I also think there is one other accommodation that would be entirely permissible: the 1984 scheme, which was discontinued because of our decision in Aguilar. The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion. All handicapped children are entitled by law to government-funded special education…
If the government provides this education on-site at public schools and at nonsectarian private schools, it is only fair that it provide it on-site at sectarian schools as well.

One almost gets the impression Aguilar was ripe for the overturnin’ – say, maybe… three years later?

Finally, O’Connor takes a detour down “Lemon Sucks” Lane:

One aspect of the Court’s opinion in this case is worth noting: Like the opinions in two recent cases, Lee v. Weisman (1992), Zobrest v. Catalina Foothills School Dist. (1993), and the case I think is most relevant to this one, Larson v. Valente (1982), the Court’s opinion does not focus on the Establishment Clause test we set forth in Lemon v. Kurtzman (1971).
It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular clause. There is, after all, only one Establishment Clause, one Free Speech Clause, one Fourth Amendment, one Equal Protection Clause…
But the same constitutional principle may operate very differently in different contexts… And setting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless…

It’s nice that O’Connor and Scalia had at least one subject on which they could agree. Speaking of which…

Justice Scalia’s Dissent

Chief Justice William Rehnquist and Justice Clarence Thomas joined Justice Antonin Scalia in his 6000+ word dissent, which led off with a Scalia’s characteristic venom, sarcasm, and intentional point-missing:

The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that, after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment” of the Empire State.

Even Scalia couldn’t have genuinely believed that the First Amendment only kicked in once an institution attained a specific number of members or reached a preset threshold of political power. Playing on the struggles of the Satmar to set up the straw argument that the issue was one of dominance over the rest of New York was disingenuous at best, red-meat ranting better suited to Fox News than the nation’s highest court.

And the Founding Fathers would be astonished to find that the Establishment Clause – which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters” … has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.

Underneath the elitist spittle lies a potentially valid assertion – that the State in this case was simply accommodating a tiny religious group in a practical and neutral way, and that there was no reason to assume the New York Legislature wouldn’t treat others equitably as well. If they proceeded to violate that assumption, the courts would still be there.

Scalia distinguished the political community of Kiryas Joel (which just happened to be full of Satmars) from the religious body of Satmars (who had chosen to live together in Kiryas Joel). A grant of governmental authority to the Satmars would be a potential constitutional violation, but a grant of local governmental authority to a community which just happens to share a religion was not. By the majority’s reasoning, Scalia argued – almost rationally – neither Utah nor New Mexico could have been admitted as States, given their respective monolithic cultures at the time.

Like Abraham challenging God over the fate of Sodom and Gomorrah, Justice Scalia proceeds to asks how many non-Satmars it would have taken for the arrangement to magically become constitutional. Two? Five? A dozen? For a moment, he struck a productive blend of snark and insight – an example of what the rest of his opinion could have accomplished if only he’d resisted the urge to disparage his colleagues personally while mocking their arguments like a middle schooler.

JUSTICE SOUTER’s steamrolling of the difference between civil authority held by a church, and civil authority held by members of a church, is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional… The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities. It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect…
I have little doubt that JUSTICE SOUTER would laud this humanitarian legislation if all of the distinctiveness of the students of Kiryas Joel were attributable to the fact that their parents were nonreligious commune dwellers, or American Indians, or gypsies. The creation of a special, one-culture school district for the benefit of those children would pose no problem. The neutrality demanded by the Religion Clauses requires the same indulgence towards cultural characteristics that are accompanied by religious belief…
JUSTICE STEVENS’ statement is less a legal analysis than a manifesto of secularism. It surpasses mere rejection of accommodation, and announces a positive hostility to religion – which, unlike all other noncriminal values, the state must not assist parents in transmitting to their offspring.

He’s a bit gentler on Justices Kennedy and O’Connor, each of whom agreed with at least part of his position in their concurrences. Unable to help himself, however, he blows past O’Connor’s criticism of the Lemon Test and focuses instead on the inadequacy of her solution:

Unlike JUSTICE O’CONNOR… I would not replace Lemon with nothing, and let the case law “evolve” … To replace Lemon with nothing is simply to announce that we are now so bold that we no longer feel the need even to pretend that our haphazard course of Establishment Clause decisions is governed by any principle. The foremost principle I would apply is fidelity to the longstanding traditions of our people, which surely provide the diversity of treatment that JUSTICE O’CONNOR seeks, but do not leave us to our own devices.

Lest the reader forget his general disdain for the lesser beings Scalia was daily forced to endure, he concludes with a tidy little summary of the Court’s sins against reason, religion, and America:

The Court’s decision today is astounding. Chapter 748 involves no public aid to private schools, and does not mention religion. In order to invalidate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws…
This is unprecedented – except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration.

No doubt Scalia is somewhere complaining still, either about the shoddy harp-playing or the lack of air conditioning. Either way, he’s no doubt mocking former colleagues for their roles in the design.

Aftermath

The Supremes would continue to struggle with the line between accommodating religious beliefs and facilitating them beyond constitutional boundaries. Usually, this would involve more familiar scenarios – allowing vouchers to be used at religious schools, arranging for students to lead collective prayer at school events, or including religious symbols in holiday arrangements on public lands.

The Court would also waver on the precise application and usefulness of the Lemon Test. Though criticized by many justices along the way, it continued to prove useful enough to at least work its way into the discussion more often than not.

Kiryas Joel is still going strong, relatively speaking, and recently voted to separate itself even more completely from the Town of Monroe of which it was technically a part. As of 2019, Palm Tree is the first entirely ultra-orthodox town in the U.S.

RELATED POST: Kiryas Joel v. Grumet (1994) – Part One

RELATED POST: Kiryas Joel v. Grumet (1994) – Part Two

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Two

November 12, 2020June 4, 2023 ~ Blue Cereal

Some version of this Talmudic Tale will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct – which is both necessary and a tiny bit sad.

Recap of Part One: Kiryas Joel was (and is) a community of particularly insular Hasidic Jews (the Satmars) in New York. Most of their children attended private religious schools, but they asked the state for assistance providing care and education for their special needs children. Initial efforts to serve these particular children ran into conflict with recent Supreme Court rulings which struck down several public school efforts to serve high needs kids in religious institutions. New York responded by allowing the Satmars to create their own neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries.

As a practical matter, it certainly solved the problem. Constitutionally, on the other hand…

Larkin v. Grendel’s Den (1982)

Just a decade before, the Supreme Court had ruled on a case having absolutely nothing to do with religious enclaves or public education, but which would nevertheless complicate the lives of the Satmars just as things were looking up for their special-needs kids.

Many states have laws limiting certain types of businesses in proximity to local schools, churches, etc. While the underlying motivation is no doubt community standards with a side of morality (having a strip club next door might prove disruptive or horrifying to the average synagogue or daycare), these zoning restrictions are justified in the name of preserving property values and limiting the exposure of young people to drugs and alcohol or whatever. (Banning a nudie bar for being a nudie bar, on the other hand, would violate the First Amendment.)

In the Massachusetts version, bars or other potentially seedy organizations were welcome to apply for state licensing wherever they liked. Churches or other specified organizations within a certain distance, however, had veto power over these applications. That way, if everyone was fine with a new business, the state wasn’t interfering. If someone objected, however, they’d simply reject the application.

Grendel’s Den was a popular restaurant frequented by students and professors from nearby Harvard University. In the late 70s, they applied for a liquor license. It was rejected based solely on the objections of the Holy Cross Armenian Catholic Church, which was located literally next door. The restaurant sued, claiming this law was a violation of the Establishment Clause. They won the case in district court, and federal appeals court, all the way up to the Supremes where they won as well.

The law would have been fine if it simply banned bars anywhere near churches. (Whether that’s good law or not wasn’t the point; it was constitutional.) But the state could not delegate any or all of its powers and responsibilities to religious institutions, the Court explained. In terms of the Lemon Test, that’s excessive entanglement. Religious people and organizations have the same voice as everyone else expressing their wishes to their representatives; they cannot, however, be appointed to replace them as lawmakers.

Was New York essentially doing the same thing with its solution to the Kiryas Joel dilemma? Was this unique arrangement basically handing over a state-funded public school to a religious group so they could run it as they saw fit?

The Decision(s)

Yes, yes it was. The Supreme Court determined in a 6 – 3 decision that New York had violated the Establishment Clause by making this arrangement, however well-intentioned it may have been. As to the specifics, however, the majority was somewhat divided. Justice David Souter wrote for the majority and was joined by Justice Harry Blackmun, Justice John Paul Stevens, and Justice Ruth Bader Ginsburg for all of it, and by Justice Sandra Day O’Connor for most of it. Justice Blackmun wrote a separate concurrence, as did Justice O’Connor. His was brief; hers was not. Justice Stevens wrote a third concurrence in which he as joined by Justices Blackmun and Ginsburg, and Justice Kennedy wrote an entirely separate concurrence in which he supported the outcome but took a very different (and lonely) road to get there. (The dissent was much more united, as it often was when Justice Antonin Scalia was stomping around breaking things. Whether this indicates whole-hearted agreement or the other dissenters simply enjoyed watching him tilt at jurisprudential windmills is unclear.)

In short, there was only general agreement among the majority about why New York’s solution violated the Establishment Clause, but substantial agreement among the minority as to why the other six justices were big stupid poo-poo heads who hated Jesus and America.

Justice Souter’s Majority (mostly, sort of) Opinion

Justice Souter wrote for the majority, such as it was. His argument had two primary points.

First, the Constitution certainly allows states to accommodate religious needs by alleviating specific burdens. This particular legislation, however, shot past accommodation and right into establishment, all without seeking less entangled ways to accomplish the same thing. Instead, the state created what Souter called an impermissible “fusion” of governmental and religious functions as in Grendel’s Den.

Second, accommodations for religious beliefs are generally constitutional if they apply equally to anyone with a similar claim or need. Refusal to take up arms and fight for one’s country, for example, is acceptable if based on deeply held religious or ethical beliefs – ANY deeply held religious or ethical beliefs. There was nothing in place to guarantee the next religious group unhappy with the education system would be granted their own public school to play with and bend to their will. This arrangement solely benefitted one religious group – the Satmars.

Concurrences (Justices Kennedy, Stevens, Blackmun)

Justice Kennedy concurred with the decision, but tied his objections to the initial drawing of political boundaries that allowed the Satmars to create their own little village. Had the exact same thing come about organically (as a result of voluntary associations and such), it would be fine. The intentional cooperation of the government in drawing the lines based on religion, however, he found problematic.

Kennedy also lamented the interference of Grand Rapids and Aguilar in what might otherwise have been a workable solution – the public school “annex” for special needs kids operating right next to a Satmar private religious school.

The decisions in Grand Rapids and Aguilar may have been erroneous. In light of the case before us, and in the interest of sound elaboration of constitutional doctrine, it may be necessary for us to reconsider them at a later date. A neutral aid scheme, available to religious and nonreligious alike, is the preferable way to address problems such as the Satmar handicapped children have suffered… But for Grand Rapids and Aguilar, the Satmars would have had no need to seek special accommodations or their own school district. Our decisions led them to choose that unfortunate course, with the deficiencies I have described.

Justice Blackmun wrote a very brief concurrence merely to assert that despite not being explicitly relied upon in this case, the Lemon Test still rocked and screw the haters. (He put it a bit loftier than that.)

Justice Stevens was nearly as succinct, but his concurrence (joined by Justices Blackmun and Ginsburg) took issue with the State’s decision to address the “panic, fear and trauma” experienced by special needs Satmar children in a public school setting by helping to re-insulate them, rather than teaching other children (and staff) how to respect their beliefs and needs. One major purpose of public schooling is to promote diversity and understanding, he argued, and this would have avoided constitutional messiness altogether. Instead, the state became an active participant in ensuring these children would remain Satmar, not by choice or informed consent as they aged, but by joining forces with their religious leaders to prevent them ever knowing the difference.

The question of how far the state should go to assist religious parents in keeping their children shielded from understanding or interacting with people different from them is a biggie, and one many prefer not to talk about. The First Amendment prohibits government from promoting or discouraging a particular faith or the idea of faith in general. Public schools are founded on the understanding that civilization requires a common set of community values – mutual respect, communal responsibility, civic participation, etc. When religious values openly conflict with a core mission of public education, accommodation requires accepting that a percentage of the community is actively working against what’s best for the whole. That doesn’t necessarily mean the State should swoop in and free fundamentalist babies from their sectarian daycares, but it certainly runs counter to the idea taxpayers should actively assist efforts to keep them in their cultural cocoons.