Paul Horwitz, at Prawfsblawg, has a post up about Kimberly Yuracko's new paper, which argues that the state has an obligation to make sure that home-schooling parents provide children with (what she regards as) a basic, appropriately liberal education. Paul invites the reactions of MOJ readers and bloggers, so head on over to Prawfsblawg and comment!
Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. Surprisingly, the legal and philosophical issues raised by homeschooling have been almost entirely ignored by scholars.
This paper seeks to begin to fill this void by making a novel constitutional argument. The paper relies on federal state action doctrine and state constitution education clauses to argue that states must — not may or should — regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism. This paper argues, in other words, that while there is an upper limit on how much states can constitutionally regulate and control children's education, there is a lower limit as well. There is a minimum level of regulation and oversight over children's education that states may not with constitutional impunity avoid.
It is extensively researched and elaborately argued, and is well worth a read by those with a variety of constitutional interests: in state action doctrine, in constitutional enforcement, and certainly those with an interest in law and education and (although more on this later) law and religion. (Take it away, MOJ!) Yuracko makes a reasonably convincing argument on policy grounds that the states and Congress have abdicated a "duty," of some sort, to ensure that homeschooling meets at least miminal educational desiderata, at least through a reasonable testing mechanism.
Her broader argument that this is, in fact, constitutionally required, is far more contentious and deserves attention, if only to tease out the implications of the piece. For instance, once having attempted to bring homeschooling under the constitutional umbrella, Yuracko argues that the state is constitutionally obligated to ensure that homeschoolers do not treat girls differently from boys. If it's a question of ensuring equal resources, this is a less controversial move, if you buy the initial moves that turn homeschooling into a constitutionally relevant area in the first place.
But she also argues that the state may be obliged to "preclude the teaching of certain counterfactual claims such as the natural superiority and inferiority of the races or the danger to women's health of intellectual development. In addition, the basic minimum [educational standard required by the state and federal constitutions] may limit the extent to which parents may teach their children idiosyncratic and illiberal beliefs and values without labeling or framing them as such." So, in Yuracko's argument, there is a constitutional obligation for the state to ensure not just that homeschooled kids receive at least a minimally competent education, but also to ensure that they receive at least a minimally liberal education. That is controversial.
Given the breadth of the argument, which surely could apply not just to questions of race and gender but also questions of what moral or religious lessons children are being taught, I might have expected a good deal more discussion of any countervailing First Amendment speech or religion claims here, although the paper's cup already runneth over. And this little statement, tucked away early on, should also be provocative to readers on MOJ and elsewhere: the paper "highlights the legal distinctness of parents and children and emphasizes that parental control over children's basic education flows from the state (rather than vice versa)." . . .
I have never met Sen. Brownback, but I respect him, and tend to like his "pro-life, whole-life" package of views. (He is willing to question capital punishment, he does not demagogue on immigration, he's good on aid-to-Africa, Darfur, and international religious freedom, etc.). I was disappointed, though, by his recent op-ed in the New York Times, "What I Think About Evolution."
Now, it is perfectly understandable that the Senator was frustrated by the (inane) questioning during the first "debate" among the Republican presidential hopefuls. And, it is entirely appropriate for him to insist that the answer to the question "who believes in evolution?" should involve "nuance and subtlety," and that the question itself (that is, the way it was posed) did a "disservice to the complexity of the interaction between science, faith and reason." This sounds just fine to me:
People of faith should be rational, using the gift of reason that God has given us. At the same time, reason itself cannot answer every question. Faith seeks to purify reason so that we might be able to see more clearly, not less. Faith supplements the scientific method by providing an understanding of values, meaning and purpose. More than that, faith — not science — can help us understand the breadth of human suffering or the depth of human love. Faith and science should go together, not be driven apart.
But then there's this:
If belief in evolution means simply assenting to microevolution, small changes over time within a species, I am happy to say, as I have in the past, that I believe it to be true. If, on the other hand, it means assenting to an exclusively materialistic, deterministic vision of the world that holds no place for a guiding intelligence, then I reject it.
I'm not a trained scientist, and so I'm open to correction on this, but my understanding is that Sen. Brownback's professed embrace of "reason" requires more than "simply assenting to microevolution, small changes over time within a species[.]" Maybe the Senator is trying, in his op-ed, to simultaneously (a) assure the New York Times that he is not an ignoramus and (b) assure those Christians for whom it is important that evolution involve no more than "small changes over time within a species" of his bona fides, but I hope not.
What's this have to do with our "Catholic legal theory" project? Maybe this: The foundational claim for us, I think, is that there is a truth about the human person, and that moral truth is accessible and built into all that is. This claim requires, I take it, that it not be the case that the world is only matter in motion. At the same time, it seems to me -- again, I'm open to correction here -- that a project which purports to have truth as its touchstone simply has no room for Sen. Brownback's stated view on "microevolution," a view that appears to reflect a refusal to follow the evidence where it leads. (To be sure, Sen. Brownback is hardly the only politician, nor are anti-evolution Christians the only people in today's world, who refuse(s) to follow evidence where it leads. Still . . . .).
Here is Francis Beckwith, a prominent (until recently) Evangelical theologian, commenting on his decision to return to full communion with the Roman Catholic Church:
Looking back, and knowing what I know now, I believe that the Church’s weakness was presenting the renewal movements as something new and not part of the Church’s theological traditions.
For someone like me, who was interested in both the spiritual and intellectual grounding of the Christian faith, I didn’t need the “folk Mass” with cute nuns and hip priests playing “Kumbaya” with guitars, tambourines and harmonicas. And it was all badly done.
After all, we listened to the Byrds, Neil Young and Bob Dylan, and we knew the Church just couldn’t compete with them.
But that’s what the Church offered to the young people of my day: lousy pop music and a gutted Mass. If they were trying to make Catholicism unattractive to young and inquisitive Catholics, they were succeeding.
What I needed, and what many of us desired, were intelligent and winsome ambassadors for Christ who knew the intellectual basis for the Catholic faith, respected and understood the solemnity and theological truths behind the liturgy, and could explain the renewal movements in light of these.
Alright, I admit it. This post has absolutely nothing to do with "legal theory." But, just in case there are any parish liturgy coordinators out there . . .
I realize that reasonable people of good will can and do disagree about the efficacy of sanctions as a means of promoting human rights in the sanctioned country. Still, this seems like good news:
President Bush imposed new sanctions Tuesday against the Sudanese government in reaction to the violence in Darfur, preventing 31 companies and three people from doing business in the United States or with U.S. companies.
The three individuals are two high-ranking government officials and a rebel leader, according to the U.S. Treasury Department. They were targeted for fomenting violence and human rights abuses in the Darfur region of western Sudan, the agency said.
"For too long the people of Darfur have suffered at the hands of a government that is complicit in the bombing, murder and rape of innocent civilians," Bush said. "My administration has called these actions by their rightful name, genocide. The world has a responsibility to help put an end to it."
According to this story in The Guardian, the British government is "considering borrowing money through bonds that are compliant with sharia law as part of its attempt to boost the City's standing as an attractive place for Muslims to do business." What do / should we think of this?
According to this story, in today's New York Times, experts in interrogation methods are criticizing the aggressive interrogation methods which have been employed in recent years against terror-suspects as "outmoded, amateurish and unreliable." However, "[t]he notion that turning up pressure and pain on a prisoner will produce valuable intelligence is a staple of popular culture from the television series '24' to the recent Republican presidential debate, where some candidates tried to outdo one another in vowing to get tough on captured terrorists."
Now, that they don't work would seem reason enough to abandon coercive interrogation tactics. But, what if they did work? I would think that, for us here at MOJ, the tactics' effectiveness -- while relevant -- would not justify their use.I'm reminded here of my own occasional frustration with the abolitionist argument that we should abandon the death penalty because it does not deter, or costs too much. The question, in both contexts, it seems to me, has to be, "given what the human person is, may this be done to this person?"
Andy Koppelman asks, over at Prof. Balkin's blog, "is religion any good?" More specifically, he asks, "[i]n what sense, if any, is it permissible for the state to treat religion as a good thing?" This question is particularly puzzling, he suggests, because "[t]he Establishment Clause 'mandates governmental neutrality between religion and religion, and between religion and nonreligion.' . . .
But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” This generates a puzzle. It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma.
Given this dilemma, Koppelman contends, "[i]t is . . . necessary to revise our understanding of the scope of the Establishment Clause. The most promising approach is to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause."
In my view, Koppelman's law-and-religion work is some of the most helpful and interesting being done. Check out the post.
On this blog, we might also bring to conversation this, from Dignitatis humanae:
The religious acts whereby men, in private and in public and out of a sense of personal conviction, direct their lives to God transcend by their very nature the order of terrestrial and temporal affairs. Government therefore ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare. However, it would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.
That is the title of Cass Sunstein's review, in The New Republic, of Philip Zimbardo's book, The Lucifer Effect: Understanding How Good People Turn Evil." Sunstein discusses, among other things, the "situationalist" view that "horrible acts can be committed by perfectly normal people. The most extreme situationists insist that in the right circumstances, almost all of us might be led to commit atrocities." Building on an account of the Milgram Experiments, and the Stanford Prison Experiments, "[Zimbardo] suggests that dispositionism is a serious error, that good and evil are largely a function of our contexts and our roles, and that almost all of us are capable of real evil, given the proper situation. Zimbardo uses his experiment to cast light on diverse problems, including the conduct of American soldiers at Abu Ghraib, airplane accidents, human inaction in the face of evident cruelty, the mistreatment of patients in hospitals, and the behavior of suicide bombers and terrorists in general."
I wonder, is the subject of Zimbardo's book really "how good people turn evil" or "why do good people sometimes do evil things"? These seems like different questions. And, what would be a virtue-ethics account of the phenomena Zimbardo explores?
UPDATE: A reader suggests two papers, in response to my virtue-ethics question. In case others are interested, the papers are: Christian Miller, "Social Psychology and Virtue Ethics," The Journal of Ethics Vol. 7, pp. 365-92 (2003); and Walter Mischel, et al., "Incorporating If . . . Then Personality Signatures in Person Perception: Beyond the Person-Situation Dichotomy," J. of Personality and Social Psychology Vol. 88, pp. 605-18 (2005).
"Swedish authorities have granted three families the right to screen embryos to create a child who can be a stem cell donor for a sibling with a deadly illness, officials said on Monday." Story here.
Nadia Kizenko has some interesting, sobering thoughts about the recent Russian Orthodox "reunion" -- and its implications for both political and religious freedom -- in the Wall Street Journal. Professor Ilya Somin adds his (skeptical) reaction here. What should *we* think?
