And Your Name Is…?

August 3, 2023July 22, 2025 ~ Blue Cereal

The State of Indiana, perhaps in a desperate attempt to catch up with the serious hardcore crazies in competing red states such as Oklahoma, Texas, or Florida, recently passed HEA 1608, a piece of legislation whose actual wording is a bit of a mess but whose intent is quite clear – Stop Indiana Public School Teachers From Turning So Many Kids LGBTQ+!

The first provision prohibits school employees from providing “any instruction to a student in prekindergarten through grade 3 on human sexuality.” At least one educator has already challenged this bit with help from the ACLU, but so far hasn’t had much luck with that.

Continue reading “And Your Name Is…?” →

You Must Get A Lot Of Phone Calls…

January 12, 2023June 13, 2023 ~ Blue Cereal

Sometimes you read the room wrong.

Several years ago, when I was still leading workshops and such, I was doing an activity with a room full of 7th Grade Texas History teachers. Part of the activity required students (or in this case, teachers) to summarize a brief article we’d just read. They were told they should include all the important stuff and leave out the fluff, and that their summary must be in full sentences and grammatically correct. Also, it had to be exactly 37 words.

The idea, of course, was to encourage students to wrestle with content in order to meet the requirements. 37 words was enough to capture most – but not all – of the important stuff in the article. The process of summarizing under such limits, however, helped increase the chance that each individual would remember the important stuff… even if some of it ended up cut in order to meet the required word count.

Once each individual did their own summary, teachers worked in groups of 3 or 4 to come up with the best “group summary” meeting the same requirements. (Again, the process is how the information gets reinforced. Ideally, there’s actual arguing over what should and shouldn’t be included and how to best express this content in the fewest words.) Final “group summaries” were written on chart paper and taped to the wall. We’d then go around as a group and read each one, critiquing it for accuracy, clarity, and whether or not it covered all the important stuff or contained any “fluff.”

I’d done this activity dozens of times – maybe hundreds. The thing was, I’d mostly taught freshmen at that point in my career, primarily those in the upper half of the academic spectrum. I’d also worked largely with mixed groups of teachers from various grade levels and usually from different schools.

In both settings, from time to time, we’d discover that one of the summaries on the wall wasn’t exactly 37 words. For whatever reason, some turned out to have 36 or 38 words (usually due to transcription errors or simple carelessness). When this happened, I’d rip down the offending summary theatrically and wad it into a rough ball before discarding it.

With overconfident freshmen, this is generally hilarious. Keep in mind these weren’t the work of INDIVIDUALS, but of SMALL GROUPS. These were also kids who probably had a little TOO MUCH self-confidence, and there was no danger of wounding their little psyches with the stunt. Teachers, too, usually found it amusing. They were trapped at a week-long workshop, after all, and anything unexpected or informal was usually a welcome relief.

Not this time, however.

In this particular workshop, we’d done the summaries, formed groups, and posted our “final” efforts on the wall. We’d already talked through several of them, praising specifics about each one, then challenging details which had been left out or weren’t entirely clear. When I got to the fourth or fifth summary, we counted the words together just like we had on all the others, and – oops! – it turned out they had 38.

“Aha!!” I cried as I ripped that puppy right off the wall and wadded it up dramatically before kicking it to the side. “Sucks to be–”

At that moment I realized that no one was laughing. Or even smiling. Twenty-nine professional educators stared at me agape, horrified at what they were seeing. It wasn’t just the group whose summary I’d just executed – it was every single teacher in the room.

When you’re in front of teachers enough times, you learn to roll with just about anything (much like you do with students, although the dynamics are different). I’d handled screw-ups before, disruptions, unhappy participants, even heated arguments between attendees. This was new, and I was momentarily at a loss as to how to proceed. I wasn’t even entirely sure what was happening, or why – although it was beginning to sink in, way in the back of my brain.

“I, um… I do this in class sometimes when the word count is wrong. We usually have too many summaries to go through in one period anyway, and it’s, um… you know… fun?”

The painful pause continued for another decade or two until one of the teachers finally spoke.

“You must get a lot of phone calls.”

I quickly shifted the discussion to context and began talking about my kids and our dynamics. I made an exaggerated (but NOT sarcastic) production of smoothing out the destroyed summary and taping it back up. I think we probably even talked about the importance of adapting activities and styles to the realities of your situation, etc. We moved on, and it was… fine. But I never quite got them fully back in the way I’d have liked.

What happened?

I didn’t read the room – at least not properly. These were 7th grade teachers. That doesn’t make them any more fragile than those teaching high school (quite the opposite, actually) and it doesn’t mean they lack a sense of humor about themselves, their kids, or anything else. I’ve worked with hundreds of 7th grade educators and they’re both saints and supermen for tackling that age group.

It does mean, however, that when they’re doing school stuff at a training designed to help them become better teachers, they’re operating with an eye on how they might use some of what we’re doing in their own classes, with their dynamics and their kids. What I did might work with certain high schoolers, or even with some of these same teachers in a different group, but in THIS context? It was horrifying.

If I want to spin it as positively as possible, it’s the fact that they were SO in the zone to begin with that made what I did seem so horrible. As experienced educators, it was nothing. As 7th grade teachers thinking about 7th grade classrooms, it was unforgivable.

But… sometimes you read the room wrong.

I remember a completely different group of 7th grade teachers halfway across the state (to be fair, when you’re talking about Texas, halfway across the state is a LONG way) who patiently listened to me talk about scaffolding and baby steps and cute little ways to introduce historical writing to pre-teens for several hours one morning. During our first break, I asked a few of them what sort of writing they were already doing in class.

“Our 7th graders all do a complete DBQ each quarter. It’s required by the district.”

For those of you unfamiliar with the terminology, a DBQ is a document-supported essay written in response to a specific prompt. They can be rather meaty even for advanced students much closer to graduation. While I’m sure these were dialed-back versions of the concept, I was nevertheless shocked. I asked whether or not that seemed to work in their district.

“Most of them do pretty well once we’ve talked through a few samples. They’re not all great, but overall it works really well.”

When we reconvened, I asked the rest of the room about their experiences and they were pretty much the same. Turns out I was in a particularly affluent, academically strong region… and that’s just how they rolled.

In that particular case, the fault wasn’t technically mine. I was teaching the workshop I’d been hired to teach. But I should have asked better questions at the beginning. If nothing else, I should have noticed how “polite” everyone was being – as opposed to engaged, or challenged, or even frustrated. I didn’t.

Sometimes you read the room wrong.

Small town districts are different from suburban districts, and neither has much in common with urban districts. Some teachers have decades of experience and a capable, supportive administration. Others are new to the classroom (or the subject, or the grade level) and work for absolute bozos who talk big and schmooze the right board members. Some take themselves way too seriously while others are a bit too martyr-ish for my taste. They all matter, and they all deserve respect, but what that looks like sometimes varies widely from place to place – or even from table to table within the same room.

Obviously this is true of our students as well. It’s extremely unlikely you’ll be able to regularly “differentiate” your lessons in service of the individual strengths or needs of each of the 30+ kids in front of you each class period, and there’s something to be said for the idea that they need to learn to adapt to us as much as we try to adapt to them. But basic effectiveness often requires “reading the room.” And sometimes you read the room wrong.

Much like in my workshop example, for me it’s usually humor that either builds great rapport or unintentionally drives a wedge between myself and certain students. For other teachers its efforts to establish classroom discipline or set appropriate academic expectations. Consistency is essential to any effective learning environment, but so much of what we do is subjective and situation-specific. With that much natural paradox, there are times your efforts will backfire.

And just to complicate things, unlike with my horrified Texas History teachers, it’s not always easy to tell whether the problem is you and what you’re attempting or them and their unwillingness to cooperate. Sometimes the room doesn’t want to be read!That’s OK. You get better at it. After 25 years, you’ll still probably screw up from time to time, but it happens less and less, and you get better at managing it. Until then, cut yourself some slack. You’d be surprised how often you’re doing better than you think. After all, sometimes you read the room wrong.

HB 1134 & Mandatory Nationalism

February 9, 2022June 4, 2023 ~ Blue Cereal

Indiana’s HB 1134 has passed the House. All its supporters had to do was not openly endorse Nazis in order to avoid the sort of unwelcome attention its companion bill in the state Senate received.

The sections of this bill which dance around the edges of “stop teaching about racism” have been well-covered elsewhere. What I’d rather focus on here are some of the less-discussed, but severely problematic bits of this legislation – starting with this:

The ideals and values expressed or enumerated in the Constitution of the United States and the economic and political institutions of the United States are better suited to contribute toward human advancement, prosperity, scientific inquiry, and well-being compared to forms of government that conflict with and are incompatible with the principles of western political thought upon which the United States was founded.

Let’s step back and give that a little context, shall we?

Turns Out We Push Beliefs After All…

Current Indiana law requires schools to teach “good citizenship instruction,” including…

(1) Being honest and truthful. {HB 1134 would add “unless doing so violates the new guidelines.”}
(2) Respecting authority.
(3) Respecting the property of others.
(4) Always doing the student’s personal best.
(5) Not stealing. {Which is somehow distinct from “respecting the property of others.”}
(6) Possessing the skills (including methods of conflict resolution) necessary to live peaceably in society and not resorting to violence to settle disputes. {HB 1134 would add “unless doing so violates the new guidelines.”}
(7) Taking personal responsibility for obligations to family and community. {I don’t love this one, but it’s already part of the language.}
(8) Taking personal responsibility for earning a livelihood. {Yeah, I know – but again, it’s already in there.}
(9) Treating others the way the student would want to be treated.
(10) Respecting the national flag, the Constitution of the United States, and the Constitution of the State of Indiana.
(11) Respecting the student’s parents and home.
(12) Respecting the student’s self.
(13) Respecting the rights of others to have their own views and religious beliefs.

HB 1134 adds a few more:

(14) The ideals and values expressed or enumerated in the Constitution of the United States and the economic and political institutions of the United States are better suited to contribute toward human advancement, prosperity, scientific inquiry, and well-being compared to forms of government that conflict with and are incompatible with the principles of western political thought upon which the United States was founded.

That’s the bit quoted above. It’s a serious mouthful of patriotism, don’t you think? Let’s see if we can unpack this one a little…

Ideals & Values?

At first glance, it seems to merely be pushing the message that the ideals and values of the U.S. Constitution are nifty. Schools are government entities and it makes sense we’d be expected to do a little cheerleading for our founding documents from time to time.

Honestly, I can live with that.

But that’s not what it says. I’m not sure if the phrasing is intentionally deceptive or simply result from the general ignorance of the authors, but this language in some ways troubles me more than the “stop making rich white kids feel bad” parts.

See, the Constitution doesn’t really say much about ideals or values. The Preamble offers some guiding structure for what it intends to accomplish…

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I guess those might count as ideals or values. Other than that, however, the Constitution is largely structural:

Immediately after {the Senate} shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year…
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices…
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Important? Absolutely. But I’m not sure how many “ideals” and “values” are captured.

Personally, I’d have started with the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…

Now THOSE are ideals and values.

Perhaps HB 1134 is referring to the Bill of Rights and other amendments. These are, after all, very much part of the U.S. Constitution as it now exists. They’re not expressed as “values” or “ideals,” but as restrictions on what the federal government (and later the states themselves) can do to individuals:

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment XV: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Yeah, I’m certain the GOP didn’t have THAT one in mind.

Implication & Inference

Let’s assume the bill means the Constitution and all current amendments, and that the ideals and values of the Declaration of Independence go without saying. Should teachers promote these as better than everyone else’s values and ideals? In short, are we OK with a little American Exceptionalism in this area?

For argument’s sake, I’m going to go with “yes.” (One of my main arguments with the modern Republican Party is how far they’ve strayed from these founding values.) But that’s NOT WHAT THIS CLAUSE SAYS:

The ideals and values expressed or enumerated in the Constitution of the United States and the economic and political institutions of the United States are better suited to contribute toward human advancement, prosperity, scientific inquiry, and well-being compared to forms of government that conflict with and are incompatible with the principles of western political thought upon which the United States was founded.

That’s a big “AND” in there. “AND the economic and political institutions of the United States”? The ones which have developed over the past 200+ years but have no foundation in the Constitution or any of its amendments? The ones many of our Founders openly fought against in designing our nation? The ones which have come, gone, and evolved over the years depending on circumstances, sometimes growing and sometimes being restrained? THOSE economic and political institutions?

Economic Institutions

I figure before I get too far on the subject, I should make sure I’m not simply confused about the terminology. I looked up “economic institutions” on several sites to make sure it means what I think it does.

According to the Library of Economic and Liberty (EconLib)…

The term “Economic Institutions” refers to two things:
1. Specific agencies or foundations, both government and private, devoted to collecting or studying economic data, or commissioned with the job of supplying a good or service that is important to the economy of a country. The Internal Revenue Service (the IRS—the government tax-collection agency), the U.S. Federal Reserve (the government producer of money), the National Bureau of Economic Research (a private research agency) are all examples of economic institutions.
2. Well-established arrangements and structures that are part of the culture or society, e.g., competitive markets, the banking system, kids’ allowances, customary tipping, and a system of property rights are examples of economic institutions.

Huh. Maybe I’ll get a second opinion… Here’s an explanation from the MIT Department of Economics:

Institutions: the rules of the game in economic, political and social interactions… {Examples of } economic institutions {include} property rights, contract enforcement, etc.

This site goes on to note an “important distinction” between

Formal institutions: codified rules, e.g. in the constitution
Informal institutions: related to how formal institutions are used, to distribution of power, social norms, and equilibrium.

In other words, this is an insanely broad term for something we’re going to be legally required to promote as the unerring zenith of all humanity.

Political Institutions

This one is slightly less problematic. Most sites agree the term encompasses the three major branches and all their variations at the state and local levels, as well as every level of bureaucracy (which I thought the GOP wanted to reduce), the two major political parties and the ways in which they do business, and the voting processes currently in place (which I could have sworn Republicans find corrupt and in need of serious reform).

If this law passes, we will be legally required as educators to insist that our current bureaucracy and voting machines are both part of a system more divinely suited to human happiness than any other conceivable variation. Not sure how Trump will feel about THAT.

In The Beginning Was The Fed…

I have no beef with the Federal Reserve, for example, but am I willing to insist that it is “better suited to contribute toward human advancement, prosperity, scientific inquiry, and well-being” compared to anything China has ever tried over the past 10,000 years? Compared to the values of Native American cultures who seemed pretty happy until we showed up? Compared to the Nations of Israel in the Old Testament? India under Ashoka? Mali under Mansa Musa? That what was REALLY missing in each subpar society was the Fed?

Our current two-party system is well outside anything our the Framers intended. Washington and others openly opposed it as divisive. But whatever else you can say about it, our current party system is absolutely a political institution of the United States. And according to HB 1134, it’s one which simply cannot be improved upon – it’s “better suited to contribute towards human advancement, prosperity, scientific inquiry, and well-being” than anything else ever in the history of mankind or anything else being tried anywhere else in the world.

Add the Electoral College (which is at least in the Constitution), the current relationship between big business and government, the industrial-military complex, the I.R.S., every bureaucratic agency at every level, every financial arrangement involving tax dollars, and so on – and I’m just not comfortable declaring that WE. HAVE. ARRIVED.

Maybe that’s not what this bill’s authors intended, but that’s what this clause says. I’m not sure there’s any other way to interpret it. If this passes, all those discussions in U.S. History or AP Government or Economics class debating the pros and cons of this or that system, this or that financial structure, etc., will become verboten. We will instead be required to insist – evidence and other points of view be damned – that the current economic and political institutions of the United States are the ideal short of which everything else falls and has always fallen.

I suppose that goes well with the new “fact” that racism and sexism have never been inherent in larger economic, social, or legal systems – just lots and lots of unfortunate random individual acts of being codified in law and supported by government officials.

Final Additions

There are two more elements schools will be required to integrate “into the current instruction”:

(15) Individual rights, freedoms, and political suffrage.

I just can’t even with the irony of this one.

(16) The economic and political institutions which have best contributed toward human advancement, prosperity, scientific inquiry, and well-being.

And I’m bewildered by this one. Only two clauses ago, we were explicitly commanded that current U.S. economic and political institutions have best contributed blah blah THOSE EXACT SAME THINGS. So what, exactly, are we covering in THIS clause?

Conclusion

As I said at the outset, it’s often difficult to distinguish between malice and ignorance. It’s a dilemma I faced in Oklahoma many times when trying to make sense of proposed legislation, and a large part of why I try to avoid it here in Indiana. But if we’re going to argue about this bill, I’d certainly appreciate someone stepping up and at least explaining what the hell they mean by some of this stuff. (Honestly, I doubt most of the bill’s supporters have the slightest clue.)

What it very much appears to be is a leap past banning the teaching of anything unpleasant in our collective past into requiring that we glorify the state in all its variations as ideal and above questioning – a level of nationalism and publicly-funded propaganda frighteningly consistent with many other Republican priorities at the moment.

Next time, I’ll try to tackle those “principles of western political thought” mentioned in the same clause. I’m not sure Republicans are actually going to like those very much, either.

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.

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