I finally got around to reading the (already) infamous Fields v. Palmdale School District ruling issued earlier this month, in which the Ninth Circuit held that "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it," and that "parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." The parents had sued after their first-, third-, and fifth-grade children were asked questions about sex as part of a survey at their public school. The kids were asked, among other questions, to indicate how frequently they were "thinking about having sex," "thinking about touching other peoples' private parts," "not trusting people because they might want sex," and "washing [themselves] because [they] feel dirty on the inside."
The court reasoned that "parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so." The Meyer-Pierce line of constitutionally protected parental authority is distinguishable, in the Ninth Circuit's view, because "once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished."
The problem, of course, is that Meyer and Pierce are rendered meaningless for parents who cannot afford private school. The Palmdale ruling may make sense in a system where school choice is the reality, but the choice to attend the local public school is not any choice at all in most instances. If parents could choose a school based on the particular mission cultivated by that school, limiting parental standing to challenge curricular decisions might actually enhance the school's ability to function as a mediating structure. Absent school choice, though, the marketplace does not exist, and the mediating function is a non-starter -- the only values imparted are those of a researcher with a scandalous understanding of age-appropriate inquiry. Parental rights in this context do not mean that any parent could trump a school's curricular decisions, but simply that parents would need to be given the opportunity to pull their child out of a particular objectionable activity.
As it stands, there is no exit option, no market pressure, and no hope for the financially strapped parent who believes that her first-grader should not spend her school day contemplating how often she is or should be thinking about touching other people's private parts.
Rob
Wednesday, November 9, 2005
Ave Maria law prof Kevin Lee offers his typically thoughtful take on Catholic legal education, based on a talk he gave at Notre Dame this fall. Here's his conclusion:
The nature of the relationship between nature and grace, and thereby faith and natural reason, is central to the project of Catholic thinking about law. It always has been, from St. Augustine’s metaphor of the Christian as pilgrim in a hostile land, to Gregory VII’s assertion to Gelasius I’s two sword thesis, to St. Thomas’s treatise on law, the recurring question is what is the right relation of grace and nature. This cannot be answered as a Catholic without understanding the meaning of the reign of Christ. A question, wryly asked by Jaroslav Pelican in the opening of his book, Jesus Through the Ages, is whether it is possible to imagine human history without Christ. What would be left, he asks, if it were possible to draw out all references to Christ from human history, as if with some giant magnet. What would be lost? Would the Catholic intellectual heritage still maintain what is most significant and meaningful in it? That is to say, can Catholic legal education be both intellectual and Catholic without Christ? What does the Christian claim of the Lordship of Christ mean for the Catholic legal theorist today? Is it merely a platitude or an eschatological aspiration? Or does Christ’s Lordship have an earthly political meaning that is in some way necessary to rightly understand the idea of the Rule of Law? And, for those who would argue that these questions are simply conservative and orthodox, to them the burden falls of showing how can such questions can be answered without turning to theological thinking about the nature of the relationship between Christ and modern culture. Is not the assertion that Christ is irrelevant to Catholic legal education itself a theological claim?
Rob
Yale law prof Jack Balkin gave an interview to PBS for the Frontline special on abortion. Here's an excerpt:
Everybody now understands that between the two major political parties, the Republican Party is more pro-life, and there are many more pro-life people in the Republican Party. And yet the Republican Party and Republican politicians, including President Bush, really don't want to see Roe v. Wade overturned. They'd like to see it narrowed. They'd like to see it made practically irrelevant in American life, but they don't want to overturn it.
Why is that? It's because American political parties are coalitions of people of very different views. The Republican coalition consists of business conservatives, suburbanites, women who are in suburbs and rural areas, libertarians who believe that the government should stay out of people's private lives, and religious and social conservatives. As long as the right to abortion is more or less protected in the United States, a lot of those people can happily stay in the Republican coalition. Libertarians can stay. Business conservatives can stay. Suburban women and rural women can stay, because they figure, basically, you can get an abortion if you need to; if you can scrape the money together, you can get an abortion.
On the other hand, if Roe v. Wade is overturned, then everything is on the table, including criminalization of abortion. And at that point, libertarians, business conservatives and lots of suburban and rural women and women in urban areas, too, will say to themselves, "I'm not sure I want to be in a party that supports criminalizing abortion." At that point, they will find the Democratic Party more attractive. And not all that many people have to bolt the Republican Party for them to lose control of Congress and the presidency, just a relatively small number. And the Republicans understand that. That's why the Republican strategy is to narrow Roe, cut back at it, weed away at it, but never officially overrule it. . . .
Assuming Balkin's perspective is accurate, can a Catholic who believes that Republican political success on a whole range of issues is more in keeping with the moral anthropology than the Democratic alternatives embrace this strategy? If there were a choice between nominating Justice X who will vote to overrule Roe and Justice Y who will vote to narrow it but never to overrule it (and their views and qualifications are otherwise equivalent), can a faithful Catholic favor the latter given the collateral political considerations?
Rob
Monday, November 7, 2005
The ongoing riots in France seem to carry lessons for our understanding of cultural pluralism and subsidiarity. An article in today's London Times notes that:
Under the ethnically colour-blind “French model”, the immigrant workers who came in the 1950s and 1960s from the former colonies in North and black Africa were to be regarded as equal citizens. They and their descendants would take advantage of the education system and generous welfare state to assimilate with “white” France. To promote the idea of assimilation, neither the State nor any other body publishes statistics on ethnic or national origin. . . . Laws supposed to promote integration and oppose multiculturalism, such as the ban on Muslim headwear in schools, have often heightened resentment and the feeling of exclusion. This has in turn fed the rise of Muslim radicalism, which has now become the dominant creed of the young in the French ghettos.
France has always deemed its model superior to the Anglo-Saxon approach of diversity, which has enabled ethnic minorities to retain strong bonds in cultural and religious communities. France calls this “comunitarism” and says that it promotes ghettos, exclusion, poverty, race riots and religious extremism that can ultimately lead to actions such as the London bombings.
It seems that subsidiarity would call for a middle ground to be explored in which a subcommunity's economic integration with society is achieved without purporting to negate the cultural or social characteristics that define the subcommunity. Perhaps the Anglo-Saxon approach has too often tended toward economic isolation, and the French approach toward cultural negation. And France's color-blind approach may be doubly problematic, as it ultimately brings economic isolation as well given the futility of the cultural task -- i.e., Muslim communities will remain different from the surrounding culture in important ways, and unless economic policy takes account of those differences, the cultural enclave can become an economic island. Obviously, easy answers are hard to come by, but it seems that subsidiarity should be one component of the question.
Rob
Today's Washington Post has an article on the coming Catholic Supreme Court, containing a complaint from the Feminist Majority Foundation that non-Catholics and non-believers are now underrepresented on the Court. This is, of course, a dangerously silly perspective on the Court, but doesn't this complaint make a certain degree of sense given the current public discourse? After all, President Bush himself advertised the relevance of Harriet Miers' religion to her nomination, and Tom DeLay's successful recusal motion in his criminal case simply takes the President's Miers defense to the next outlandish step. In the Post article, Gerry Bradley may further this trend with his comment about the Catholic justices' "moral traditionalism, a position which is surely in line with their Catholic faith and which they hold, I should think, at least partly due to their faith." And USC poli sci prof Howard Gillman also comments that many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," and that he thinks we're "seeing the fruits of those efforts now."
Am I overstating this trend of legal instrumentalism effectuated through judicial identity? (Dennis Hutchinson, for example, is quoted in the article for the notion that judicial ideology trumps church doctrine.) If the trend is real, does it simply represent the overdue articulation of the fact that judicial identity has driven jurisprudence all along, or have the culture wars brought us to a new, starker stage of identity-based jurisprudence?
Rob
Friday, November 4, 2005
A work in progress by NYU philosophy prof Elizabeth Harman has been posted on the Legal Theory blog. In the paper, Harman argues that attitudes that attribute moral status do not endow moral status. Why then should we respect the wishes of members of an indigenous tribe who believe that a particular mountain is sacred and is harmed by hiking, but not the wishes of abortion clinic protesters who believe that protecting a fetus is of vital moral importance? Her explanation: "the anti-abortion protesters' love of [the woman's] fetus does not bring the fetus's death to be bad for the protesters, while by contrast the hikers' hiking on the mountain is bad for the tribe members in virtue of their worship of the mountain."
Rob
Wednesday, November 2, 2005
Here's some ammunition for Rick's effort to put the Reformation in its place: Over at the Volokh Conspiracy, David Kopel has posted his new article, "The Catholic Second Amendment." Here is an excerpt from the conclusion:
One of the values of understanding the debt that the Declaration of Independence and the Second Amendment owe to the Summa Theologica, to Policraticus, and to other great works of Catholic resistance theory is that we can better understand that the American principles of revolution and the right to arms are not novelties that spontaneously arose in 18th-century America or in 17th-century Great Britain. Rather, they are the natural results of an intellectual tradition that was in many ways far older and broader -- and much more Catholic -- than the American Founders may have realized.
Rob
