Tuesday, September 14, 2010
What should judicial accountability look like?
The same-sex marriage controversy in Iowa has spilled into the judicial retention system, where there is an active campaign to remove the supreme court justices who voted to strike down the state statute limiting marriage to a man and a woman. Let's assume for the sake of this argument that the court's ruling was an example of judicial "activism" unmoored from the rule of law. Still, I submit that the broader move toward judicial elections -- including the need to raise gobs of cash from interested parties and the reliance on ads deploying scare tactics about unpopular decisions that a judge may or may not reach -- is a bigger threat to the rule of law than any particular decision that has been handed down in recent years. Thoughts?
School Vouchers for Kids with Special Needs
I wasn't aware of this development in special education, analyzed in this article by Wendy Hensel:
Vouchers for Students with Disabilities: The Future of Special Education?
Abstract:
Many voices over the last decade have called for reform in special education in American public schools. As the number of those receiving services under the Individuals with Disabilities Education Act (“IDEA”) has grown, scholars and pundits have increasingly argued that the system not only is failing to meet the needs of many children with disabilities, but in some cases is actively causing harm to those it is intended to serve.
Over the last several years, an increasing number of state legislatures have proposed or have passed laws that give children with disabilities public money to attend a private school. Rather than trying to fix the perceived deficiencies within the existing system, these states instead facilitate the exit of unhappy parents and students from public schools altogether. The evidence suggests that some voucher supporters have focused on children with disabilities because of the political viability of using vulnerable children as the first step towards universal school choice.
The momentum toward vouchers has the potential to make a significant and lasting impact on the manner in which children with disabilities are educated in the United States. Because most states require students receiving vouchers to waive their rights under the IDEA as a condition precedent to receiving state money, this impact will be felt not only at the state level, but also on federal policy going forward.
This article explores the impetus behind the voucher movement, the parameters of existing legislation, the legality of voucher programs, and the corresponding public policy consequences which follow their adoption.
This sounds to me like an excellent development for Catholic schools that feel that their mission calls them to serve kids with special needs, but their budgets don't permit them to answer that call. There are some fascinating findings in the article, among them the fact that the largest proportion of minority students in parts of Florida using these vouchers are attending religious schools. Hensel writes: "This may be explained by the fact that minorities are disproportionately represented in low socio-economic households, and that religious schools can be among the most affordably-priced private school, particularly in urban areas." (Go, Catholic schools!)
A quick look at the article indicates that Hensel concludes that this development overall is troubling for the special needs student population, because (1) many of the kids using the vouchers won't be well-served in the private schools to which they go, because those schools don't have good enough programs for them; and (2) the vouchers will mainly be used for kids from well-off families with less complicated special needs, leaving behind in the public schools the more complicated cases, which will eventually lead to more segregation of kids with special needs in the public schools. But objection #1 seems unduly speculative, and #2 seems to be contradicted by the statistics like those found in Florida, and seems to ignore the other side of the equation -- the increased integration of special needs kids into all sorts of educational settings other than the public schools.
Though Hensel acknowledges that the move for these special needs vouchers was parent-driven, and that the overwhelming majority of parents receiving these vouchers are pleased with them, she argues that: "Beyond this support, however, there is no question that a number of interest groups and individual legislators have stepped on the bandwagon of the special needs vouchers as the pathway to meeting other legislative agendas. the most common of these is a desire for universal school choice. For these advocacy organizations, children with disabilities may be elected as the poster children for the voucher movement because it is difficult politically to argue against benefits that will serve this vulnerable group."
Well, SHOULDN'T it be difficult politically to argue against benefits that will serve this vulnerable group? Why shouldn't this group have the same access to school choice as nondisabled children?
Rick, am I missing something here?
Monday, September 13, 2010
Where the danger actually lies
Robby George invites us to ask where the danger actually lies when candidates for jobs in the legal academy reveal (or not) what they hold as true. I'll answer (and I know it's only a partial answer) with a true story. I've taught at several law schools, and one of them once interviewed someone who was then recently first in his class at one of the top three or so law schools in the US. He was also then a recent clerk to one of the "conservative" Justices of the Supreme Court. He also brought to the table heaps of other sterling credentials and an engaging way that portended excellent teaching and great citizenship. I attended his job talk, and was impressed. Many other colleagues were impressed. Other colleagues were opposed, though, and one visited me in my office. She tried to explain that the job talk was deficient. I offered my reasons for thinking it was very good, certainly far, far above our "standard." She countered that the candidate "appeared nervous." I asked why this mattered; I also said I didn't see any nervousness (though, of course, entry-level candidates *should* be nervous, as this story illustrates). Emboldened, she went on to aver that the candidate was nervous because of his own insecurity about the "conservative" quality of the thesis of his talk. I'm not myself sure the views he defended were recognizably (or in any way truly) "conservative" (or liberal or any other category like the one invoked), but they certainly weren't popular locally. For whatever reason, no offer of employment ever issued to said candidate. He now teaches at a far better law school than the one at which I then taught.
When the person I have in mind interviewed at my then law school, he was married (to a woman). Later, he divorced and came out of the closet as a gay man. When I once mentioned that development to an earlier opponent of the candidate whose trajectory I've just described, the response was that if that change had occurred earlier, an offer of employment would have been much easier to make.
QED
The Neuhaus Colloquium on the "Treatment of Human Embryos"
The Witherspoon Institute's Neuhaus Colloquium has made available online the executive summary of its recently released statement, "The Obama Administration and the Treatment of Human Embryos" (here). A bit:
. . . Shall we limit our ambitions, even at a price to ourselves? Shall we treat human beings in the embryonic stage as less than fully human because the embryonic human would be more useful to us dead than alive?
We believe these questions have clear answers. Every human being deserves to be treated with the same basic level of concern and regard that we owe to all members of the human family. If basic human equality means anything at all, it must mean that individuals deserve equal moral regard and legal protection in virtue of who they are, not because of their worth as judged by others according to their own needs and desires. . . .
Perry on Rights, Constitutions, and Courts
Here is a link to a recent paper of Michael's, "Rights, Constitutions, Courts":
1. Why entrench certain rights - certain rights of the sort we today call human rights - in a constitution, rather than solely in legislation? 2. We could sensibly entrench such rights in a constitution without empowering courts to enforce the rights. Albert Venn Dicey, in An Introduction to the Study of the Law of the Constitution (1885), wrote : “The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.” Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights - qua “maxims of political morality” - can serve as shared, fundamental grounds of political-moral judgment in a political community. So, why empower courts to enforce - and therefore to interpret - constitutionally entrenched rights? 3. If the judiciary is to be empowered to enforce constitutionally entrenched rights, how great a power should it have? The power to have the last - the ultimate - word, overrulable only by constitutional amendment or by the judiciary itself? (I have called this the power of judicial ultimacy.) Or the power to have only the penultimate word, overridable by legislation? (I have called this the power of judicial penultimacy.) Or some even lesser power? We see the power of judicial ultimacy exercised in the United States, by the federal judiciary, and the power of judicial penultimacy exercised in (for example) Canada. We see an even lesser power exercised in the United Kingdom, under the Human Rights Act of 1998. 4. Given that, for better or worse, the U.S. Supreme Court exercises the power of judicial ultimacy, should it exercise that power deferentially, along the lines recommended by James Bradley Thayer in his classic essay “The Origin and Scope of the American Doctrine of Constitutional Law” (1893)? Or should it exercise the power nondeferentially? Should Thayerian deference be at least the default position - with exceptions for certain categories of cases? What categories? 5. What does it mean to “interpret” the Constitution. What should it mean?
Check it out!
Sunday, September 12, 2010
Where does the danger actually lie?
I'm out of the country at the moment with rather spotty internet access, but I was able to check in at MoJ today and found Patrick Brennan's post about Carlos Ball's accusations of discrimination against him in hiring at Villanova. I know nothing about the facts in this particular case, but Patrick plainly does, and I'm glad that he published them, however reluctantly, to set the record straight.
On the more general point, let me put a question to everyone, Let's imagine that Joe is a candidate for an entry level law teaching position at Villanova, Georgetown, Boston College, and Loyola of Los Angeles. He is a secular person who self-identifies as gay and is living in a sexual partnership with a man. He has thought carefully and read widely about issues of sexual morality and marriage, and has arrived at the view that any sexual act can be morally good so long as it does not involve coercion or deception and the parties performing the act find it mutually pleasant and fulfilling. He has also formed the conviction that state marriage laws should recognize same-sex partnerships as marriages. Sam is a candidate for a law teaching position at Harvard, Yale, Columbia, and Stanford. He is a Catholic who has thought as deeply and read as widely as Joe has about issues of sexual morality and marriage, but has arrived at different judgments. He believes that fornication, adultery, and sodomy are immoral acts and that the law ought to define marriage as the conjugal union of husband and wife.
Now, as it happens, Joe and Sam, despite their differences, have some things in common. Both are summa cum laude graduates of Williams College. Both were Rhodes Scholars who earned D.Phil. degrees in philosophy from Oxford. Both were law review editors at Harvard Law School. Both were Supreme Court clerks. Both are outstanding young scholars and promising teachers. And one more thing: Both are good friends of yours, and have sought your advice on the same question: How big a risk would I be taking if I decided not to conceal the facts about myself and my views having to do with sexual morality and marriage?
Does anyone think that Joe would be taking a bigger risk than Sam? Indeed, does anyone think that the risk is equal? What would you tell Joe? How would you advise Sam?
Or revise the example to leave the Catholic institutions out of it. Imagine that Joe and Sam are candidates for positions at the top secular law schools---the ones that profess to be non-sectarian and neither liberal nor conservative in matters of morality and politics. Joe and Sam are competing against each other and other candidates at Harvard, Yale, Columbia, Stanford, Penn, Chicago, Berkeley, and NYU. Which one is in greater danger if all the facts about him and his views are known, Joe or Sam? As a friend, would you give both of them the same advice, whether it is to disclose the facts or conceal them? Or would you give them different advice. Is there anybody---anybody---who would advise Joe to conceal and Sam to reveal? Is there anybody who thinks that Joe would be put at risk in the slightest by disclosing the facts about himself and his views? Is there anybody who thinks that Sam would not be taking any significant risk by revealing the facts about himself and his views?
Over many years of teaching, I've known lots of Joes and Sams. I've never known a Joe who worried that disclosing the relevant facts about himself and his opinions would hurt him in seeking a position at a top-tier law school or university department. By contrast, I've never known a Sam who didn't worry that his candidacy would be harmed by disclosing the facts. Are the Sams needlessly worrying? Are the Joes heedlessly not worrying? For my part, it seems to me that the Joes and Sams are reading the situation pretty well. They know where the dangers are lurking, and where they're not.
Fifty years later...
Today is the fiftieth anniversary of Senator John F. Kennedy’s address to the Greater Houston Ministerial Association. I have commented on this speech before, but this is the first and last time I’ll have the opportunity to offer several observations on the fiftieth anniversary of its delivery.
Much can be said about this speech after concluding a careful study of the text, and a little more can be gleaned in light of comparing the text to the recording of the address as delivered, which is available at the John F. Kennedy Library and Museum site. One important fact surrounding this address is this: it was made by a politician seeking higher office for which the election was less than two months away and the outcome of the election was uncertain. While recognizing that the religious issue was an important matter before the voters (Can a Catholic be a loyal American office holder? Well, the fact that he had been a holder of elective office for some time would suggest an affirmative answer to this question.), Senator Kennedy was quick to call attention to the far more pressing issues of the day—e.g., economic issues, tense international relations, and the security of the nation with an imposing threat 90 miles off the coast of Florida which would come to a head in two years. Still, as a politician seeking office, he made a gamble which was this: telling not only the Protestant ministers gathered at the site where he was delivering his address but also the American people that he believed “in an America where the separation of church and state is absolute.” I suspect that this statement was intended to placate those who believed without question that no one who claimed to be Catholic could also be a loyal citizen and, therefore, a competent and effective President.
But in noting this political assertion and the unsound Constitutional argument on which it is based and signifies, the politician-candidate John F. Kennedy understood well that he could not alienate his co-religionists with this gamble designed to win sufficient support from Protestants. So, perhaps with Saint Thomas More in mind, he concluded this address by pointing out that “if the time should ever come—and I do not concede any conflict to be even remotely possible—when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same. But I do not intend to apologize for these views to my critics of either Catholic or Protestant faith—nor do I intend to disavow either my views or my church in order to win this election.”
John F. Kennedy, as candidate, did not want to alienate anyone who might be inclined to vote for him on any and all grounds. John F. Kennedy, as candidate, wanted, like his opponent Vice President Nixon, to win this election. As it turned out, Kennedy prevailed and was awarded the office for which he labored so hard to achieve.
Now we must fast forward a bit to a little over four months later on a bright but bitterly cold day in Washington, D.C. on the steps of the Capitol where the same John F. Kennedy stood but this time not as candidate for the office of the President of the United States but as the President of the United States duly elected by his fellow citizens—and the Electoral College. As President, John F. Kennedy opened his Inaugural Address by saluting his vice-president, the former Chief Executive and his vice-president, a past Chief Executive, the Chief Justice of the United States, his fellow citizens, and the Reverend Clergy, including the Archbishop of Boston, Richard Cardinal Cushing. Now with the office of President securely his, there was no need for Kennedy to conceal Catholicism or at least its appearance in the public square. Thus, the new President in the second sentence of his inaugural address informed his audience before him and the audience around the world which listened or watched that he had “sworn before [them] and Almighty God the same solemn oath our forbears prescribed nearly a century and three-quarters before.” Many recall his famous words: “Ask not what your country can do for you—ask what you can do for your country.” But other words spoken by the new President demand our attention today.
Before his audience—wherever they were—heard this famous exhortation about service, President Kennedy declared in the first substantive paragraph of the address these words of significance: “The world is very different now. For man holds in his mortal hands the power to abolish all forms of human poverty and all forms of human life. And yet the same revolutionary beliefs for which our forbears fought are still at issue around the globe—the belief that the rights of man come not from the generosity of the state but from the hand of God.” [Italics mine]
Would any American politician today invoke the name of God in such fashion? With very few exceptions, most would probably not—not out of lack of conviction but out of fear of the political consequences. Here we need to keep in mind that a few paragraphs later, the President relied on the prophet Isaiah’s command “to undo the heavy burdens... (and) let the oppressed go free.” But with the election a thing of the past and with the prospect of four and perhaps eight years of a presidency ahead of him, John F. Kennedy concluded his stirring inaugural address with these two sentences: “whether you are citizens of America or citizens of the world, ask of us here the same high standards of strength and sacrifice which we ask of you. With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God’s work must truly be our own.” These words could well be the assertion of any disciple of Jesus Christ who accepts the missionary charge: “you too go into my vineyard.”
While there may be other statements made by President Kennedy that put into context the address delivered to the Greater Houston Ministerial Association, one other speech delivered about a half year before his assassination needs to be considered here. On April 20, 1963 at an educational institution that was at that time unambiguously Catholic, President Kennedy, speaking at the school’s centennial observance, felt confident to speak as a Catholic before a diverse audience of Catholics, Protestants, Jews, and others of different faiths and some of no faith. The President took the occasion to comment on Pope John XXIII’s very recent encyclical letter Pacem in Terris. Here is what he had to say:
In its penetrating analysis of today’s great problems, of social welfare and human rights, of disarmament and international order and peace, that document surely shows that on the basis of one great faith and its traditions there can be developed counsel on public affairs that is of value to all men and women of good will. As a Catholic I am proud of it; and as an American I have learned from it. It only adds to the impact of this message that it closely matches notable expressions of conviction and aspiration from churchmen of other faiths... We are learning to talk the language of progress and peace across the barriers of sect and creed. [Italics mine]
Where the politician, where the President, and where the Catholic John F. Kennedy would take all the views in the future is unknown. But one thing is for certain: these were all his views. To take one alone would do disservice to his memory but, more importantly, to the republic which he served and to the Church to which he belonged.
RJA sj
Saturday, September 11, 2010
Pastor Terry Jones and President Obama
Charles Lane in the Washington Post argues that President Obama should not have put pressure on Pastor Jones to terminate his plans to burn copies of the Koran. Obama's worry is that a bonfire of this character would trigger Muslim violence. Lane thinks instead that Obama should have condemned the Pastor's actions and envouraged Muslims everywhere not to engage in reactive violence. Lane thinks that Obama should have celebrated the First Amendment right to engage in speech condemned by the majority.
Lane does not maintain that Obama has violated the First Amendment by his speech. My own view is that Obama should spend more time condemning Republicans for turning Muslims into scapegoats in order to curry political advantage. But I cannot resist saying that Obama's continued war in Afghanistan has done more to antagonize Muslims than Pastor Jones could ever do. Obama is not in any position to try to lead Muslims around the world to forgo reactive violence.
cross-posted at religiousleftlaw.com
Friday, September 10, 2010
Catholic Higher Education: An Update on St. Gregory's University
St. Gregory's University in Shawnee, Oklahoma recently added two new board members: F. Russell Hittinger, Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa and W. Perry Hodgden, Associate Director of Investments at Oppenheimer in Kansas City, Mo. And, I was elected to the Board's Executive Committee.
At yesterday's meeting, the Board of Directors unanimously adopted a statement of identity, confirming clearly its Catholic and Benedictine foundation. This statement, "May Faith Grant Light: The St. Gregory's Difference," will provide the vision driving academic and co-curricular planning, hiring, allocation of resources, fundraising, and student recruitment. Here is the statement:
May Faith Grant Light: The St. Gregory’s Difference
“Only in faith can truth become incarnate and reason truly human, capable of directing the will along the path of freedom.” Pope Benedict XVI
Welcoming all who want to take advantage of the excellent opportunities afforded by St. Gregory’s University, the university especially seeks students from all walks of life who have a burning desire to go into the world and bear witness to Christ’s love and faith’s light with their very lives as they pursue vocations of marriage, parenthood, and consecrated life, utilizing their passions and talents as entrepreneurs, managers, and other members of the business community; teachers, doctors, nurses, lawyers and other members of the professions; and painters, dancers, actors, and other creators of beauty.
St. Gregory’s strives to educate and form the whole person in the context of a Christian community in which students are encouraged to develop a love of learning and to live lives of balance, generosity, and integrity. The Benedictine motto, ora et labora – pray and work, is taken seriously as those who serve the university as faculty, staff, and administrators endeavor to model a balanced life of prayer, study, work, and leisure in a spirit of hospitality, community, reverence, attentiveness, and service.
St. Gregory’s University, with its motto, fides lumen praebeat – may faith grant light, continues in the United States and Oklahoma a 1500 year old tradition of organically establishing life-giving cultures rooted in an integration of faith and reason and grounded firmly within the Catholic Church. In those “dark ages” after the fall of the Roman Empire, small lights of faith and learning flickered throughout Europe as Benedictine monks kept the embers of civilization alive by collecting and preserving manuscripts, opening schools, and planting the seeds for the development of vibrant Christian communities. Several times during his pontificate, John Paul II spoke of the coming of a great springtime for Christianity, the Church, and the human spirit. He said: “The mission that the Church, with great hope, entrusts to Catholic Universities holds a cultural and religious meaning of vital importance because it concerns the very future of humanity” (Ex Corde Ecclesiae). We invite you to join us here at St. Gregory’s University to bear the first fruits of the seeds planted so many years ago by living out the Great Commission in the 21st century.
Truth, goodness, beauty, and unity shape our classical liberal arts curriculum. Pope Benedict XVI reminds us of “the intrinsic unity that links the different branches of knowledge: theology, philosophy, medicine, economics, every discipline, even the most specialized technologies, since everything is connected.” The Core Curriculum serves as the lens through which students come to see this unity. It includes a four semester sequence of seminars –“Traditions and Conversation”- based upon the literary and cultural heritage of Western civilization and four courses in “Faith and Reason” encompassing introductions to theology, philosophy, scripture, and ethics. Throughout the curriculum, excellence is expected of both faculty and students as we strive to provide an academically rigorous education. Our favorable student to faculty ratio provides ample opportunity for students and professors to get to know each other both inside and outside the classroom.
"The Catholic Schools We Need"
Archbishop Timothy Dolan has an outstanding piece in America, called "The Catholic Schools We Need." A taste:
In the 20th century, for example, there was no greater witness to the effectiveness of Catholic schools than the Nazi and Communist efforts to destroy them. Pope Benedict XVI’s own beloved homeland—where to be Bavarian was to be Catholic—was perhaps hardest hit in all of Germany. By January 1939 nearly 10,000 German Catholic schools had been closed or taken over by the Nazi Party. Tyrants know and fear the true strength of a Catholic education: what parents begin in the home, Catholic schools extend to society at large.
But what of today’s Catholic schools that exist in a world largely free of those sorts of 20th-century threats? Are we not facing our own crisis of closure for the Catholic school in America?
The answer is yes. . . .
The reasons for the decline are familiar: the steady drop in vocations to the religious teaching orders who were the greatest single work force in the church’s modern period; the drastic shift in demographics of the late-20th century that saw a dramatic drop-off in Catholic immigration from Europe; the rising cost of living since the late 1970s that forced nearly every American parent to become a wage-earner and put Catholic education beyond their budget; and the crumbling of an intact neighborhood-based Catholic culture that depended upon the parochial school as its foundation.
The most crippling reason, however, may rest in an enormous shift in the thinking of many American Catholics, namely, that the responsibility for Catholic schools belongs only to the parents of the students who attend them, not to the entire church. Nowadays, Catholics often see a Catholic education as a consumer product, reserved to those who can afford it. The result is predictable: Catholics as a whole in the United States have for some time disowned their school system, excusing themselves as individuals, parishes or dioceses from any further involvement with a Catholic school simply because their own children are not enrolled there, or their parish does not have its own school.. . .
The truth is that the entire parish, the whole diocese and the universal church benefit from Catholic schools in ways that keep communities strong. So all Catholics have a duty to support them. Reawakening a sense of common ownership of Catholic schools may be the biggest challenge the church faces in any revitalization effort ahead. Thus, we Catholics need to ask ourselves a risky question: Who needs Catholic schools, anyway?
The answer: We all do. . . .
It is time to recover our nerve and promote our schools for the 21st century. The current hospice mentality—watching our schools slowly die—must give way to a renewed confidence. American Catholic schools need to be unabashedly proud of their proven gritty ability to transmit faith and values to all their students, particularly welcoming the immigrant and the disadvantaged, whose hope for success lies in an education that makes them responsible citizens. This is especially true for the Catholic Hispanics in the country, whose children account for a mere 4 percent of the Catholic school population. Failure to include the expanding Hispanic population in Catholic education would be a huge generational mistake.
To re-grow the Catholic school system, today’s efforts need to be rooted in the long-term financial security that comes from institutional commitment through endowments, foundations and stable funding sources and also from every parish supporting a Catholic school, even if it is not “their own.” Catholic education is a communal, ecclesial duty, not just for parents of schoolchildren or for parishes blessed to have their own school. Surely American Catholics have sufficient wealth and imagination to accomplish this.. . .
Amen. Shout it from the rooftops. Read this from every pulpit. Post this in every parish.
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