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.

Saturday, March 26, 2011

The Pro-Life Generation

By Greg Sisk

My high school daughter, Katie, is active with her Catholic high school's pro-life club.  When the students went to the Minnesota capitol in St. Paul a couple of weeks ago to support the pending "Unborn Child Pain Prevention Act," she and the others from her school ended up spending half an hour debating the merits of the bill with a pro-choice state legislator in his office.  That legislator's mind wasn't changed that day, but he told the small group of high school students how impressed he was with their thoughtful and strong, but always courteous, arguments.  Especially those of us who become discouraged from time to time (and I certainly include myself in that number), we must remember that speaking up for the unborn and never tiring in the struggle for life will yield benefits down the road that we may never see on this side of paradise.  (And, if a proud father may say so, my daughter thoroughly enjoyed and was energized by the extemporaneous debate -- so we may have other budding lawyer in our family!)

Anyway, because one of her fellow students at Benilde-St. Margaret's High School is featured in the video, Katie sent to me a link to the following YouTube video from Students for Life.

 

Seldom have I watched something that has given me such hope for the future and such confidence in the finest of our young people.  It is worth a few minutes of your time.  I promise you'll be uplifted.

Greg Sisk

Wednesday, February 16, 2011

Tax Increases and Prudential Judgment: When are They High Enough?

By Greg Sisk

In his post earlier today, my colleague Rob Vischer provocatively proposes that "a good Catholic cannot rule out tax increases in today's fiscal climate" and confesses that he finds the anti-tax camp "more infuriating" than the anti-government spending cuts camp.  In the end, though, Rob acknowledges that taxing and spending debates fall into the realm of prudential judgment.

Considering only one aspect of those practical, real-world, economic factors, we have compelling evidence just today that the zenith for what counts as a reasonable tax rate plainly has been reached here in Minnesota.  Today's editorial from the consistently left-leaning Minneapolis Star-Tribune is headlined:  "Dayton plan misses competitive reality."

If Minnesota were an economic island, the call for tax fairness across income lines that Gov. Mark Dayton made with his budget-balancing proposal Tuesday would have considerable appeal in this traditionally egalitarian state.

. . .   Dayton's proposal would also give Minnesota the highest top-tier income tax rate in the nation in the next three years . . . .

And the total size of his proposed new taxes appears likely to rank at or near the top this year among the 50 states.

Dayton's proposal is true to this state's 20th-century preference for taxation based on ability to pay. But Minnesota is not an economic island.

The rigors of the 21st-century economy demand that the state leaven its egalitarian impulses with the imperatives imposed by worldwide competition for highly mobile capital and talent. Most states have tax systems more regressive than Minnesota's.

What Dayton proposes would make Minnesota an outlier, at a time when the penalty for a reputation as a high-tax state is large and growing.

At what point are taxes high enough?  Well, the Minneapolis Star-Tribune opines that the new Democratic governor's tax increase proposals are dangerous to the economy and likely to frighten away new capital investment in the state -- an editorial I would not have expected to read in that newspaper until the flames of Hell had been suffocated beneath deep drifts of Minnesota-style snow.  Sometimes prudential judgment becomes a prudential imperative.  In Minnesota at least, we've reached that point.

 

Monday, December 20, 2010

Tax Increases and Prudential Judgment: When are They High Enough?

By Greg Sisk

In his post earlier today, my colleague Rob Vischer provocatively proposes that "a good Catholic cannot rule out tax increases in today's fiscal climate" and confesses that he finds the anti-tax camp "more infuriating" than the anti-government spending cuts camp.  In the end, though, Rob acknowledges that taxing and spending debates fall into the realm of prudential judgment.

Considering only one aspect of those practical, real-world, economic factors, we have compelling evidence just today that the zenith for what counts as a reasonable tax rate plainly has been reached here in Minnesota.  Today's editorial from the consistently left-leaning Minneapolis Star-Tribune is headlined:  "Dayton plan misses competitive reality."

If Minnesota were an economic island, the call for tax fairness across income lines that Gov. Mark Dayton made with his budget-balancing proposal Tuesday would have considerable appeal in this traditionally egalitarian state.

. . .   Dayton's proposal would also give Minnesota the highest top-tier income tax rate in the nation in the next three years . . . .

And the total size of his proposed new taxes appears likely to rank at or near the top this year among the 50 states.

Dayton's proposal is true to this state's 20th-century preference for taxation based on ability to pay. But Minnesota is not an economic island.

The rigors of the 21st-century economy demand that the state leaven its egalitarian impulses with the imperatives imposed by worldwide competition for highly mobile capital and talent. Most states have tax systems more regressive than Minnesota's.

What Dayton proposes would make Minnesota an outlier, at a time when the penalty for a reputation as a high-tax state is large and growing.

At what point are taxes high enough?  Well, the Minneapolis Star-Tribune opines that the new Democratic governor's tax increase proposals are dangerous to the economy and likely to frighten away new capital investment in the state -- an editorial I would not have expected to read in that newspaper until the flames of Hell had been suffocated beneath deep drifts of Minnesota-style snow.  Sometimes prudential judgment becomes a prudential imperative.  In Minnesota at least, we've reached that point.

 

Wednesday, August 11, 2010

More on Academic Engagement (or Lack Thereof) with the Real World and Whether Catholic Academics are Any Better

By Greg Sisk

A couple of days ago, I placed a post here on the Mirror of Justice, spring-boarding from Peggy Noonan's column decrying a growing gulf between average Americans and opinion leaders, including those in the universities.

At the end of the post, I asked this question:

Have we, or at least have those Catholic professors who take the Catholic legal and social thought projects seriously, done a better job of remaining connected to the real world?

I opened the comments to that post, which prompted a vigorous ongoing discussion, and I thank Paul Horwitz, Steve Smith, and others for their generous contributions, both in agreement and disagreement with the premises of my post.  One of the commentators referred us to the "No Hidden Agenda" web site, which had linked to Mirror of Justice and offered some thoughts on the question.  Herewith an excerpt, which emphasizes the need to stay connected through service to the broader community:

My experience, especially in the theology department at Fordham University, is that many of us are [that is, many Catholic academics are remaining connected to the real world].  Especially considering the outreach into the Bronx community via the service learning courses that many of us are teaching, we are starting to challenge the standards of the secular academy in light of our identity as constituted by Catholic Social Teaching.  We have the wonderful opportunity in our courses to combine activities that might be dismissed as ‘activism’ in other circles with detailed, rigorous study and argument in the classroom.  I’m teaching my first service learning course this fall and my medical ethics students will actually be serving institutions like New York Presbyterian Hospital and Calvary Hospice Center in ways that will immeasurably increase the impact of the course on their lives–in addition to being of service to their local New York community.  It also has the added benefit of lending practical experience to my students which they can then use as a tool to evaluate  the often sterile and abstract arguments I will force them to read as part of any modern academic medical ethics course.

Perhaps this model of learning should be the norm, instead of the exception at a Roman Catholic University.  Perhaps part of what it means for a University to be Catholic is to engage the world in the spirit of its social teaching in a way that the secular academy finds to be ‘trivial’ or ‘populist.’   But in a classic both/and argument, Catholic universities need to stand firm in the belief that being true to this aspect of their identity actually furthers the goals of a rigorous education.

Friday, August 6, 2010

The Gulf Between Academics and the Real World: Are Catholic Academics Any Different?

By Greg Sisk

In her column today, Peggy Noonan warns about this:

I started noticing in the 1980s, the growing gulf between the country's thought leaders, as they're called—the political and media class, the universities—and those living what for lack of a better word we'll call normal lives on the ground in America. The two groups were agitated by different things, concerned about different things, had different focuses, different world views.

But I've never seen the gap wider than it is now. I think it is a chasm.

Noonan's point -- that university professors and others among the cultural elite in the United States are preoccupied with matters that are viewed as politically correct extremism or ivory tower foolishness by others and thus have become disconnected from the world inhabited by our fellow citizens -- is difficult to dispute.

Every time I gather with neighbors or parishioners, or when I simply talk with others while waiting in line at the grocery store or walking around the lake at the local park, I am reminded by just how insular and narrow are academic perspectives on what is important, on moral values, on living a satisfying life, on politics, on economics, or even on hobbies and pursuits.  The gulf between what is conventional wisdom in academic circles and what is valued in most other settings is brought home to me in more direct terms when I travel to places other than college towns or urban centers on the left and right coasts.

A weekend spent with my now-elderly mother and her friends or my in-laws and the extended family across several generations, along with the lively conversations and debates that follow when we get together, serve as a cautionary note to me.  Even someone like me whose more conservative views and traditional religious beliefs depart from the academic norm can find himself shaped and constrained by the politically-correct academic mindset, starting to think that some points are obvious or some positions are indisputable.  But then I realize yet again how most universities have become echo chambers in which like-minded academics, whatever their discipline (and to some extent whatever their political party), confirm one another in their opinions (most of the time).

The question I want to pose to members and readers of the Mirror of Justice is this:  Are Catholic academics any better at reflecting the greater diversity of thought and breadth of perspective found outside of the typical university setting?  Do we pay better attention to the matters that are of greater concern to our fellow citizens, even if they are not the hottest topics in the faculty lounge or the trendy subject of an academic symposium?  Have we, or at least have those Catholic professors who take the Catholic legal and social thought projects seriously, done a better job of remaining connected to the real world?  If the Mirror of Justice is any indication, I think maybe we have, that our very disagreements on-line keep us better grounded.  What do you think?  Comments are open.

Wednesday, July 7, 2010

The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part Two)

By Greg Sisk

Yesterday (post here), I offered several principled reasons why law schools should provide ample room for student organizations to define their own purpose and values, including expectations for members and leaders. In addition, several practical reasons counsel a law school to hesitate before following the lead of the Hastings College of Law in imposing a uniform “accept-all-comers” rule. In its decision in Christian Legal Society v. Martinez, the Supreme Court majority did not offer unqualified approval for the “all-comers” rule in all circumstances and all applications:

First, as the Supreme Court majority acknowledged (and remanded the case for further consideration) and as the dissenting opinion emphasized, any policy regulating law school student organizations must be applied evenly, not selectively, and in a viewpoint neutral manner. Thus, a law school may not forbid the Christian Legal Society chapter from limiting voting rights to students who share the Christian faith, while allowing the student Outlaw group to limit leadership to students who promote “gay pride” or who endorse “same-sex” marriage. Indeed, because the Court’s majority opinion is somewhat opaque on what viewpoint neutral membership standards may be adopted consistent with an “all-comers” policy, it is not clear that a student Running Club may require members to actually go running or that a student Pro Bono Service Project could expect members to actually participate in pro bono projects, at least outside of attendance at regular club meetings inside the law school building.

A law school adopting an “accept-all-comers” policy will have to be scrupulous in following the same policy strictures for all student organizations, however heavy-handed that may end up being in practice. And therein lies a substantial degree of risk for a law school administration. Because each student group is different and has its own purpose and goals, what makes sense for one group in running a meeting or planning activities, and in adopting requirements for membership, may range from the irrelevant to the self-defeating for another. And yet the administration of an all-comers policy has to apply a one-size-fits-all standards for membership and leadership eligibility for all student organizations. Any slip away from such uniformity in a particular case would slide the public school back into what is forbidden constitutional territory, even for the Supreme Court majority.

Because law school administrators often are perceived as having favorites among students and student groups, and because students also tend to be aware of ideological leanings among administrators and faculty, students (and other faculty members) will be on the sharp look-out for any evidence of inequality in application of regulations of student groups. As was discussed yesterday, the result may be a flattening out of student groups in purpose and thus a decline in their vitality. But that’s the price a law school would choose to pay if it insists upon controlling the membership rules for student groups rather than letting the marketplace of ideas flourish without administrative regulation.

Second, the Supreme Court majority agreed that it would be an abuse of an “all-comers” policy for a law school to stand idly by while students opposed to the principles of a student group attempted to infiltrate and stage a hostile take-over of that group. The Court majority said: “If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.” Justice Kennedy in concurrence also agreed that a constitutional challenge would have merit “if it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views.” Thus, the continued legitimacy of a law school all-comers policy turns on how it is actually used by students and how disputes about student group messages play out.

Continue reading

Tuesday, July 6, 2010

The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part One)

By Greg Sisk

Because it was such a dramatic setback for constitutionally-protected freedom of expression and association on public university campuses, the Christian Legal Society v. Martinez case naturally has been been the focus of attention primarily in terms of the constitutional questions resolved (incompletely) by the Supreme Court. Now as law schools, law faculties, law students, and others digest the opinion, the next and open question will be whether many law schools choose to follow the lead of the Hastings College of Law.  Even if they are constitutionally permitted to do so, will (and should) law schools want to adopt a policy for recognized student organizations that requires any and all students to be accepted as full voting members, full fledged participants, and leaders, regardless of attraction to the purpose and support for the message of the group?

Despite the constitutional door opened to an “accept-all-comers” policy (at least in the abstract and with many questions of application remaining), we still may hope that many or most law schools will reject the invitation to intrude so directly into law student association and expression. Even the Supreme Court majority stopped short of endorsing the wisdom of the Hasting accept-all-comers policy, reminding readers that the constitutional “permissibility” of a school policy may not correspond to the “advisability” of that policy.

For reasons of both principle and practical judgment, law schools would be well-advised to freely allow students to come together and establish the structure, membership, and leadership of student organizations according to their own shared interests and values. In today’s post, I address the principled side of the matter, that of protecting freedom of association and expression and of promoting genuine diversity within the law school. In tomorrow’s post, I’ll address the likely administrative headaches and continuing risks of litigation that would attach to those law schools that attempt to apply an “all-comers” rule to student groups in a constitutionally valid manner.

The law school that prides itself on genuine and meaningful diversity and that wishes to fully embrace freedom of expression will turn away from the political or ideological temptation to restrict student organizations according to a uniform formula. Especially in the public law school, law students should be allowed considerable leeway in setting principled standards for membership and leadership, including demanding a commitment to certain beliefs and expectations that define the group.

By extending anti-discrimination rules beyond appropriate bounds of restricting the acts of the law school as an institution and thereby imposing rules of uniformity on student groups, a law school would create a needless conflict between principles of equality and freedom of association and expression. Instead, law school should embrace what “Gays and Lesbians for Individual Liberty” in their amicus brief before the Supreme Court in Christian Legal Society v. Martinez described as “[a] confident pluralism that conduces to civil peace and advances democratic consensus building.” As this amicus explained in that brief, law schools should “permit the marketplace of ideas to work, not pretermit debate through misapplication of nondiscrimination rules in an expressive forum.”

A law school should avoid a rigid policy of enforced formal diversity that in practice crushes true diversity. A sincere commitment to meaningful diversity, not just in appearance but in thought, should lead a law school to permitting those with diverse perspectives to think and act in accordance with their own principles, absent some dangerous disruption to essential order. People of shared values should be able to join together in promoting the principles or identity of the group without being accused of invidious discrimination. In another amicus brief, a coalition of minority religious groups including the American Islamic Congress, the Coalition of African-American Pastors, and the Sikh collation offered this important reminder: “[I]t is fundamentally confused to apply a rule against religious discrimination to a religious association.”

Continue reading

Saturday, July 3, 2010

The Case for Catholic Schools (Part Six): Exercising Religious Liberty

By Greg Sisk

[This is the last in a series.  The full series may be found here.]


Since the Catholic immigration to the United States began in numbers in the middle to late Nineteenth Century, religious liberty and Catholic schools have been intertwined in American history.


Beginning with the Supreme Court’s 1925 decision in Pierce v. Society of Sisters, which affirmed the right of parents to choose faith-based education for their children over the state’s attempt to force all children into government-run schools, and continuing through the 2002 decision in Zelman v. Simmons-Harris, which approved the inclusion of Catholic and other religious private schools in the Cleveland voucher program for disadvantaged families, a robust and living form of religious liberty has been realized in the right of educational choice for Catholic education.


The Catechism of the Catholic School recognizes the fundamental right of parents to choose the school for their children in keeping with their religious faith:

"As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions.  This right is fundamental.  As far as possible parents have the duty of choosing schools that will best help them in their task as Christian educators.  Public authorities have the duty of guaranteeing this parental right and of ensuring the concrete conditions for its exercise."  Catechism of the Catholic Church, para. 2229.

The Free Exercise Clause of the First Amendment of the Constitution speaks in terms of “free exercise” of religious faith,  The plain import of this phrase – “free exercise” – is that of acting upon one’s beliefs.  “Exercise” denotes action, not merely passive contemplation. As Catholics, we among believers are especially drawn to collective exercise of our faith, in the aptly-named Mass and the other Sacraments.

Coming together as a community in Catholic education is also a vital form of devotion and religious expression.  When, as but one pedestrian example, my daugher and her class-mates talk about Christian themes in a great literary work in English class in a Catholic high school, knowing that such a discussion is welcomed and encouraged, their faith is exercised and the blessings of religious liberty are realized again.

By choosing Catholic education for our children, we continue in a long-standing tradition and participate actively in that continuing exercise of religious liberty.  And whatever choices we make as families, whether to parish or public schools or alternative arrangements such as home-schooling, we can join together in this weekend’s celebration of our nation’s birth by celebrating as well the cherished freedom to make educational choices for our children.  Let us also remain committed to expanding those opportunities for all.

Happy Fourth of July!

Greg Sisk

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

Tuesday, June 29, 2010

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

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