Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 30, 2010

The Case for Catholic Schools (Part Five): Preserving Urban Neighborhoods

By Greg Sisk

[This is the fifth in a series of six. You may find the previous parts here.]

Most of the reasons offered for choosing Catholic schools naturally focus on the educational benefits for our children and the increased educational opportunities for other families. But Catholic schools bring benefits to the community beyond the immediate educational benefits to their own students. The health and vitality of Catholic schools is strongly correlated with the health and vitality of the neighborhoods in which they are found.

Professors Margaret Brinig and Nicole Garnett have been conducting important empirical studies on the effects of Catholic schools—and, in particular, the negative effects of the closing of Catholic schools—on neighborhoods in Chicago. As they put it, we need to come to a full “understanding of the importance of Catholic schools, not just to their students but also to their communities.”

In the first phase of their study, they found that Catholic elementary schools are “important generators of social capital in urban neighborhoods.” When a Catholic elementary school is closed, “neighborhood social cohesion decreased and disorder increased.” By social cohesion, the study means perceptions by residents of a neighborhood of whether it is close-knit, whether people can be trusted, and shared values. Social and physical disorder is measured by such things as public drinking, using or selling drugs, broken glass and windows, graffiti, and vacant houses or storefront, based upon systematic surveys of people living in Chicago neighborhoods about their perceptions of these problems over time.

A Catholic school closure in a neighborhood was statistically significant and substantially predictive of a loss in social cohesion and an increase in disorder. Professors Brining and Garnet report: “These results lead us to conclude that Catholic schools are important, stabilizing forces in urban neighborhoods: school closures lead to less socially cohesive, more disorderly neighborhoods.” Indeed, even in an era in which parish boundaries often have disappeared and Catholics leave one neighborhood to shop for parishes and Catholic schools in another neighborhood, the presence of a Catholic school in an urban neighborhood continues “to foster neighborhood social capital.”

In a second phase of the study, which remains in draft form and is not yet published, Professors Brinig and Garnett test the “broken windows” syndrome and find that Catholic school closures will lead, in relatively short order, to increased crime in a neighborhood.” Moreover, when a Catholic school closes in an area where other Catholic school closures had previously led to decreases in social cohesion and increases in social and physical disorder, the increase in crime rate after another Catholic school closure will be even more significant.

The richness of the data and the importance of the findings in the Brinig-Garnett studies cannot be fully conveyed by a short blog post. And, as something that I as an empirical researcher myself do admire, Professors Brinig and Garnett are cautious in interpreting and extrapolating from their findings and recognize the need for further study. If anything, their results are probably under-stated.  Fortunately, the data speak for themselves.

In sum, the words of former Secretary of Education Margaret Spellings ring true, our Catholic schools are a “national treasure.” And they are a treasure whose keeping has been entrusted, not only but first and foremost, to Catholic parishes and families.

Greg Sisk

Putatively Unconstitutional Burdens and the 'Hermeneutics of Suspicion'

By Steve Shiffrin

Much of the disagreement between Steve and Rick on the CLS decision seems to ride on how burdened CLS is by Hastings's 'all comers' policy.  Per the 1A doctrine so far as I understand it, that is altogether fitting once it is established that the the all comers policy is viewpoint-neutral -- a question I'm probably not fit at this point to address, though I'll close below with a brief remark on this question. 

Back to the burdens, then, Rick suggests that those placed upon CLS by Hastings are weighty.  In contrast, Steve's enumeration of those benefits that Hastings confers upon RSOs on the one hand, and on CLS on the other, encourages a conclusion that what ever burdening is occurring here -- specifically, the difference between the two just-named sets -- is de minimis.  Perhaps, then, we might do well to zero-in on this 'burdens' question for a bit in our attempt to assess the Court's decision.  Who has the burdens here right, Steve or Rick? 

Here's a brief observation of my own on this score, FWIW:

So far as I can tell, the one burden that CLS definitely faces post-Hastings is loss of the public university's imprimatur and a trifling amount of funding.  Less clear, I gather, is whether it loses more than this in the form of formally or practically denied access to facilities and physical space at the school.  

Hastings has apparently avered that such access remains as it was prior to CLS's seeking exemption from the school's non-discrimination policy.  Justice Alito in dissent, for his part, makes heavy weather of one incident, in which the school administrator from whom permission to make use of a patio was sought did not reply to the request until after the date that the access was needed.  He effectively suggests that the tardiness in question is now Hastings's policy vis a vis CLS.  (See first paragraph of page 15 of Slip Opin dissent.)  Relatedly, he effectively cites the school's advising its CLS chapter that subsequent requests should be made through a lawyer as another indicator of access-denial. 

What Justice Alito does not note, surprisingly, is that the mentioned tardiness and advisement both occurred just after CLS had filed suit against the school.  I wonder, then, whether there is any additional, more substantial basis on which Justice Alito grounds the suggestion that CLS lacks access even to physical space and facilities at Hastings.  Any thoughts or observations on this score from anyone?

One thing I am struck by in comparing Justice Ginsburg's opinion, Justice Stevens's concurrence, and Justice Alito's dissent is how starkly different the imputed motives are that they infer from the parties' deeds leading up to the litigation.  I find it tempting at least provisionally to conjecture that Justice Alito's elision, from the one early incident of tardiness in response to a 2004 request, to a still ongoing policy of denying CLS access to physical facilities, is partly the product of his suspicions about Hastings officials' motives.  Justice Alito of course gives expression to these suspicions with abandon in much of his dissent, which is significantly more skeptical of the viewpoint-neutrality of Hastings's all comers policy than are the majority opinion and concurrence.  Methinks then that he might be interpreting the 2004 tardiness incident he cites pursuant to a 'hermeneutic of suspicion.'  But again, I dunno.  Any thoughts?

A final point: I mentioned above that I'm probably not adequately cognizant of the 1A doctrine to opine confidently on the matter of viewpoint-neutrality here.  I am tempted to wonder, however, whether disagreement on this score might ultimately be rooted in continuing disagreement over the degree to which sexual orientation is an ineluctible attribute.  For I doubt that anyone along the mainstream segment of the 'left/right' continuum would find any objectionable viewpoint-non-neutrality in a public institution's refusal to fund or endorse student organizations requiring that members take an oath not to wed people of ethnicities other than their own.  (A 'Bob Jones Society,' as it were, seeking SRO status at a public university.)  And my guess is that many who find discrimination on the basis of sexual orientation to be invidious view sexual orientation as bearing more in common with ethnicity than with mores.  Again, any thoughts?   

The Catholic Church is Finished?

By Michael Perry

[from The Atlantic, July/August 2010:]

The Catholic Church is Finished

By Ross Douthat

This was the year when the cover-up of priestly sex abuse, a long-simmering crisis for Catholicism, became something much, much bigger. It was Watergate. It was Waterloo. It was another Reformation. The pope had to apologize. No, the pope had to resign. No, the pope had to be arrested. The Church could be saved only if every bishop stepped down. No, the Church could be saved only if a Third Vatican Council was convened. No, the Church could be saved only if it became as liberal as the Episcopal Church, and quickly. No, nothing could save the Church: it was too corrupt, too compromised, too medieval, too anachronistic. And now, at last, it was finished.

A little historical perspective suggests otherwise. The Church has been horrifyingly corrupt in previous eras and still survived. It’s been led by ecclesiastics who make Bernard Law’s hands look clean, and still survived. It’s faced fiercer enemies than Richard Dawkins (think Nero, or Attila, or Voltaire) and still survived. Time after time, G. K. Chesterton wrote, “the Faith has to all appearance gone to the dogs.” Each time, “it was the dog that died.”

But if the Church isn’t finished, period, it can still be finished for certain people, in certain contexts, in certain times. And so it is in this case: for millions in Europe and America, Catholicism is probably permanently associated with sexual scandal, rather than the gospel of Jesus Christ. And as in many previous dark chapters in the Church’s history, the leaders entrusted with that gospel have nobody to blame but themselves.

The CLS and other student organizations at Hastings

By Robert John Araujo, SJ

I follow in the footsteps of others on the Martinez case.

Yesterday, I looked at the student web page at Hastings Law and began to look at many of the student organizations, including the environmental, civil liberties, reproductive rights, Jewish, Muslim, feminist, and GLBTQ groups. Some of these organizations have their bylaws posted on-line. While these organizations offer different formulations about the fact that they welcome all students, I wonder what this really means. Since some of these organizations do stand firmly for positions that would not be attractive to students who do not endorse such views, are they, in fact, truly open to all students?

It seems that the CLS was more open--more honest--about what it stands for, and for this it was disciplined by the law school authorities. I suppose the CLS could have taken the approach that other organizations do and say that they welcome all students. But the CLS did not join them for fellowship in this regard; rather, the CLS chose the path of honestly standing for something, i.e.,Christian principles, and being open about what is constitutive of being a member of the organization. And for their commitment to Christian principles and for their honesty, a majority of the Supreme Court has institutionalized in the law the sanction against them and the discrimination that follows.


RJA sj

The significance of the CLS case

By Rick Garnett

I was very disappointed by the decision in the CLS case.  (Disclosure:  I submitted an amicus brief in support of CLS.)  Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters.  I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled.  For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc.  I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).

Steve S. says that the case is "insignificant" (and I hope he turns out to be right).  But, I read the case differently than he does.  Let's put aside the (to me, troubling) possibility that the Court majority over-emphasized a mid-litigation "stipulation", and overlooked the fact that it is more accurate to say that the CLS was singled out for special approval than subjected to a neutral and general "all comers" policy.  Steve says "[t]he Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court)."  The Court *did* hold that Hastings can discriminate against "religious organizations that believe that being a religious organization means, among other things, taking religion seriously regarding membership and leadership."

As Steve notes, much of the disagreement comes down to disagreement about the "reasonableness" of the policy (given that it does, in any case, burden the associational freedom of groups).  In this context, the factors that make a policy "reasonable" need to be weightier than "we could imagine someone thinking that factor was a good idea."  In my view, the "all comers" policy actually is not reasonable; it advances no weighty interest very far, and those plausible interests it promotes are actually not promoted enough to justify the burdens imposed. 

 

The Insignificance of the Christian Legal Society Case

By Steve Shiffrin

I may be blind, but I do not see the law declared in the Christian Legal Society case as a serious blow to freedom of religion or freedom of speech. The Court affirmed an “all-comers” policy in the case. In order to secure subsidies from the Hastings Law School, any organization had to be open to all students. If it was not open to all students, Hastings agreed to provide access to law school facilities for meetings and access to adequate means to publicize its meetings. 

The Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court). The Court did not rule that Hastings could prohibit selective membership; it ruled that Hastings need not subsidize organizations with selective membership. And the Court ruled that an all-comers policy should not be approved if it were a pretext to discriminate against the Christian Legal Society. The Court remanded to determine whether the policy was pretextual if the issue was still procedurally open to the plaintiffs.

Justice Alito disagreed with the Court on its understanding of the record and Alito decided many factual issues for the first time in the Supreme Court, issues that had not been reached by the lower courts including whether the Society really had access to facilities for meetings.

But the legal differences between Justice Ginsburg, author of the majority opinion, and Justice Alito were thin. They did disagree whether an “all-comers” policy was reasonable. Justice Ginsburg argued it was reasonable because an all-comers policy ensured that students were afforded leadership, educational, and social opportunities, that Hastings students are not forced through their student fees to fund a group that would reject them as members, that it helped Hastings enforce its anti-discrimination policy (and state anti-discrimination laws) without the necessity of determining the basis for membership restrictions, and, by bringing together people of diverse backgrounds, that it encouraged toleration, cooperation, and learning. Any claim that hostile students would take over an organization was contrary to the experience of the school and unduly speculative. The reasonableness of the policy was also indicated by its measured character. The school offered access to school facilities to conduct meetings and the use of chalkboards and some bulletin boards, and it could take advantage of electronic media and social networking sites.

I personally would not support an all-comers policy (and I think Justice Alito has a good rejoinder on the reasonableness issue though I do not recall a response to the student fees argument). I also worry that an all-comers policy could conceal discriminatory interests (though the fact that it applies to all organizations undercuts that worry). But I do not think the policy is constitutionally unreasonable.

So long as groups with selective membership policies have access to school facilities to conduct meetings and the means to communicate about them, and that is the legal assumption of Justice Ginsburg’s opinion, I do not think this case is very significant. 

cross-posted at religiousleftlaw.com

Wisdom?

By Robert George

Okay, I'll take the bait.  John Paul Stevens is wise?  I don't think so.  There is something decidedly and deeply unwise---tragically and, indeed, lethally unwise---about purporting to infer a right to kill unborn children from the constitutional principle that no state shall deprive any person of life liberty or property without due process of law, or from the prohibition of laws respecting an establishment of religion.

Tuesday, June 29, 2010

The Old and the New; the Wise and the ... well, the New

By Michael Perry

The Case for Catholic Schools (Part Four): Making a Statement for Educational Choice

By Greg Sisk

This is the fourth in a series of six. Here you may find Parts One and Two and Three. As before, I have turned on the comments.

By choosing Catholic schools, we make a statement for educational choice that, when amplified by other parents making the same choice, may both strengthen educational choice and bring about reforms in this society that respect parents choice. (And, yes, this message is sent in equally compelling fashion by those who choose home-schooling.)

It is one thing to support parental choice. Nearly every informed Catholic supports the existence of educational choice and some form of vouchers or tax credits to allow more parents to make that choice. But it is another thing to exercise parental choice. By “putting our money where our mouth is,” so to speak, we clearly communicate to other Catholics, neighbors, and others that we believe in and are willing to take a stand for Catholic education.

By choosing Catholic schools (or home schools), we communicate several things, some explicitly and some implicitly:

* We clearly say that we cherish the right of parental choice in education by making that choice for our own children. Our friends and neighbors will see that people of character and responsibility in our society are the type of people that choose Catholic education, thus defeating the stereotype of those who bypass public education as odd religious zealots or societal misfits.

* We encourage other Catholic families to consider Catholic education for themselves. When they see our example, those who are on the fence or have been worried about whether it is possible or wise to forgo public schools may have the confidence to make the choice for Catholic education for their families. In other words, we become not only advocates, but witnesses, for Catholic education.

* We hearten dedicated Catholic educators, who have made considerable sacrifices to apply their educational training and skills to faith-based education. By showing that we appreciate their efforts and calling upon them to work with us in educating our children, we validate their work and inspire them to greater efforts and successes.

* We also make clear, perhaps more implicitly, that we will stand behind parental choice and can be counted to oppose regulations or public policies that would limit the ability of parents to make the right choice for education of their children, including religious choices. In this respect, those of us who believe Catholic schools are the best option should have no illusion but that the fate of Catholic education also turns on protection of the right of parents to make the alternative choice of home-schooling. The most aggressive of those who advocate for strictly regulating or prohibiting home-schooling, if they were to be successful, undoubtedly would turn their attention next to Catholic schools and other threats to the public school monopoly. Indeed, some secularists already are looking for greater government controls on private religious schools.

For some people, choosing private alternatives to the public schools counts as well as a protest against public schools, even a campaign to close or diminish public schools. Although I understand and respect that message, and I agree there is good reason to criticize much that happens in public education, the message of essential opposition to public schools is not mine. By endorsing parental choice, concretely and emphatically, and by expressing a strong preference for Catholic education for Catholic parents, I do not thereby suggest dismantling public education or denying that choice to parents who find it preferable. I do intend to challenge the public school monopoly over education (and believe that competition would also serve to reform public education).  But my goal is to increase educational competition and not narrow the choices to only my preferred option.

In sum, the statement I suggest that we should and do make by choosing Catholic education for our children is a positive message for faith-based and other private school alternatives, at the choice of parents rather than government bureaucrats.

Greg Sisk

Monday, June 28, 2010

Feeding the Perception That the Government Stands in Opposition to People of Faith

By Greg Sisk

With sometimes over-the-top rhetoric and with occasional exaggerated or even mythical tales of episodes, a growing number of religious leaders argue that our government has become, not just indifferent, but actually hostile to people of traditional religious faith.  We are told that the government abandoned traditional values and respect for religious faith during the middle of the twentieth century, as represented most conspicuously by the ban on prayer in public school. Then, the argument continues, the government began in the 1960s and 1970s to promote liberal secular ideologies, such as typically found in public school sex education programs, which conflicted with traditional religious and moral teachings. Now, the story goes, the government has entered the final stage by affirmatively suppressing those who dare to express religious values in public life.

The exclusion of the Christian Legal Society as a registered student organization by the Hastings College of Law, which was upheld as constitutional in today's Supreme Court decision, will become another object lesson for those who portray our public institutions as hostile to people of faith.  And that perception will be more powerful because, in this case at least, the perception is grounded in harsh reality.  Even assuming good faith and sincere progressive ideals by the Hastings law school administration in its enforcement of "anti-discrimination" policies against the Christian Legal Society, the inescapable fact remains that a prominent member of the legal academy has suppressed a counter-cultural religious minority (that is, a minority in law school settings) and weakened the religious speech and association rights of traditional Christians in law school.  With this, and similar bans or restrictions on student faith-based organizations that almost surely will follow at other publicly-funded law schools, the legal academy will be sealed more tightly into a liberal secular echo chamber.

Very sad.  And so contrary to the principles of diversity and freedom of thought so often touted by the legal academy.

The Christian Legal Society is about as mainstream a religious organization as could be found in this country.  Far from representing a tiny sliver of Christianity or espousing narrow sectarian theology, the Christian Legal Society has a "Statement of Faith" which every Christian can affirm.  Nor is the organization a partisan political entity or one that holds to a fringe political agenda.  Members of the Christian Legal Society range from fundamentalists and evangelicals to mainline Protestants and Catholics.  Liberals, conservatives, Republicans, Democrats, political activists, poverty lawyers, big firm lawyers, small firm lawyers -- all are found in the active membership of the Christian Legal Society.  Even in its position on sexual morality, espousing the traditional view that sexual relations should be occur only within "God’s design for marriage between one man and one woman," the Christian Legal Society reflects the broad mainstream of American Christianity.  Like it or not, the overwhelming majority of Christian churches and denominations, attended by the overwhelming majority of the Christian faithful in America, adhere in official statements and church policies to traditional views on sexual morality.  Those Christian denominations that accept same-sex or other non-traditional sexual relationships remain a tiny minority, mostly mainline denominations with declining membership.  At present, an endorsement of traditional sexual morality represents the sweeping middle of American Christianity.  Thus, for Hastings Law School to ban the Christian Legal Society from among its registered student groups takes a swipe at the lion's share of the believing population in this country.

One of the legacies of the Christian Legal Society decision will be the further decline by people of faith in support for public initiatives and the further withdrawal of many faithful people from engagement in public life.  On the Mirror of Justice, we have had vigorous debates about Catholic teaching and principles and the use of government to promote the common good, especially the poor and disadvantaged.  While we have had strong disagreements on the prudence of government involvement in certain matters and the degree of government involvement overall, all (or nearly all) of us on the Mirror of Justice agree that the public, sometimes through government activity, has a vital role in promoting the common good.  That case will be harder to make in the future.

Why should people of faith support with their tax dollars public education programs when people of faith are excluded or denigrated?  When public university presidents hold out their hands for more money (or at least fewer budget cuts) at each legislative session, why should people of faith respond favorably if public universities treat Christians as second-class citizens?  Or, taking it a step further, why should people of faith trust the government to have a larger role in the economy through regulation of business enterprises or provision of health care, when too many government elites not only do not share the values of believers but appear to be hostile to them?

Greg Sisk

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