We rely on the courts to return the apple-cart to the right-side-up position after all of the efforts to overturn it at the local level. Sometimes the apple-cart remains topsy-turvy despite best efforts, as the ideological conflict on the ground is often played out in the highest courts of the land. See the following exchange, which goes from most recent to earliest. In other words, if you want to follow it, try starting at the bottom, as long as we're talking about apple-carts that have gone topsy-turvy. Seems only fair, right?
BARNETTE
An exchange from the list that drew a "Yes, exactly," to the comment from rs by one of the distinguished participants and an "I'd hope you'd agree..." from another, as follows:
Off list.
Judge B****
Why, I hadn't given a thought to that! So I appreciate your turning the coin over for me to see the reverse side, heretofore hidden from my admittedly blinkered view.
I suppose that if a kid believes it wrong, meaning against his/her faith, the faith of his fathers and mothers, and pastors, etc., to sing praises to the lord or to the nation, say graduation prayers, or even, perish forbid, to learn that viruses mutate (evolve) over time, that's up to him. Or her. She may believe that it's her God-given right to decide when to become a mother or not, or to engage in reproductive type behavior.
This passage, below, from Peter Hessler's "Oracle Bones" (HarperCollins, 2006, paperback), about China (he's a former WSJ assistant in Beijing and later the NY'er correspondent to China), which I happened upon today, coincidentally, seems in point. He's quoting Polat, a Uigher companion and middle-man by profession, who he has come to know well, the Uighers being Muslims who object to China's control over their destiny:
Referring to Afghans (p. 120):
"They're the same as Communists," he told me once.
"There's no freedom in Afghanistan. You have to believe in something, and you can't ask questions.
That type of Islam and Communism are exactly the same."
Perhaps the question we need to ask is whether we are indoctrinating students or teaching them to think for themselves, independently of what their parents and pastors teach. Are we preparing them to be members-in-good-standing of the church of their choice, or of something we may just as well call the American church, or to be American free-thinkers, dissidents, and other subversive types such as I think became prominent from the time of Allen Ginsburg's days as a beatnik and following.
Is there something we have to believe in? Justice Jackson, in Barnette, says not, but perhaps he spoke too soon.
Are we allowed to ask questions?
In open class?
According to what authority is the teacher supposed to respond?
With best regards,
Robert Sheridan
PS: I do appreciate the reaction to the post and the fact that you credit me with familiarity with Mozert v. Hawkins County, which has escaped me, alas, and has proven unfindable on Findlaw's Supreme Court facility.
PPS: Not content with saying "I couldn't find it" (Mozert) on Findlaw, I found it using another service. Suddenly I sense why the point is of particular interest with a certain Judge B**** of the Sixth Circuit (which circuit helps account for my ignorance), from 1986:
" I do not believe these attempted distinctions will survive analysis. If the situation of these children is not a burden on their religious exercise, it must be because of a principle applicable to all religious objectors to public school curricula. Thus, I believe a deeper issue is present here, is implicitly decided in the court's opinion, and should be addressed openly. The school board recognizes no limitation on its power to require any curriculum, no matter how offensive or one-sided, and to expel those who will not study it, so long as it does not violate the Establishment Clause. Our opinion today confirms that right, and I would like to make plain my reasons for taking that position..." [From the Fed 2nd concurring opinion]
I agree, the point is deeper and must address the concerns of the various participants in the conflict as they are at bottom, and not just on the surface, to be worthy of the effort and of the Constitutional values at odds with one another. I also appreciated the distinction made between "exposure" and "indoctrination, " as well as between Yoder and Schempp.
Thank you again for your reaction to the post.
And yes, a child (at least under the trimester notion suggested with tongue maybe in cheek) should be permitted to opt out as a reasonable accommodation, assuming this isn't unduly disruptive or burdensome to the educational system, i.e. quietly and not a stampede. It seems reasonable to assume that government needn't be in the business of fostering or debunking specific religious beliefs unnecessarily, but that doesn't suggest to me that the schools cannot teach Galileo, Charles Darwin, Gregor Mendel, the history of Western Science as we know it, and Garry Trudeau's "Doonesbury," despite the problems that some religious folk may have with it, which brings us about back to where we started, unless I'm sadly mistaken.
On Jul 25, 2008, at 2:23 PM, [Judge B****] wrote:
I would hope you would allow equal opt-outs to children of equivalent ages who object to "pagan" role playing, reading from unpalatable books, diversity exercises, etc., a la Mozert v. Hawkins County?
***
I think I can smell a socially, meaning politically, conservative evasion when found lying across the road, so I tend to agree with Malla's observation to that effect. We simply cannot go around recognizing the rights of disfavored minorities, such as young (American) people, who may thumb their noses with impunity at enforced participation in government sponsored rituals, just as, I believe, Justice Frankfurter feared, in Gobaitis and his dissent in Barnette. If we taught young Americans that they have rights to decry government symbolic ritualization, where would that lead? To anarchy, that's where.
Nor women. Justice Blackmun wrote Roe v. Wade as though he was coming down ringingly not on the side of a woman's right to choose but a (likely white male American, at the time) doctor's right to advise a woman what to choose, which strikes me as being a little different. If he knew about Indian, Chinese, and Filipino ancestry male and female doctors abounding in America's hospitals today I wonder whether he would've taken the same tack, but I hesitate to presume.
We have a habit of proclaiming broad rights in the abstract but undercutting them, not to say gutting them, in practice. I've heard the Fourth Amendment guarantee against unreasonable search and seizure described as Swiss Cheese, and the Roe doctrine described (by none other than the late Rehnquist, CJ) as a Potemkin village of a doctrine, but why start in.
Perhaps we should try the trimester approach with teenagers, or ask whether they're viable before recognizing that they have rights. For the first six years, they have no rights to refuse to Pledge; for the next six years maybe, depending on whether they bring a note from a parent, and for the final six years, they can remain seated if they like, up to them. Sort of a reverse Roe which the government has to respect. Except for the conservative school districts, of course, where intelligent design may be big.
Such a shame that we lost George Carlin recently, don't you think?
rs
sfls
On Jul 24, 2008, at 11:39 AM, Michael Mas***** wrote:
Yesterday the Eleventh Circuit reversed a district court decision that had
held facially unconstitutional a Florida statute requiring all public
school children to recite the pledge of allegiance unless a particular
student has a written parental requested to be excused; students who
object to reciting the pledge but who lack the required written parental
request (like high school student plaintiff) must recite it. The court
characterized the Florida law as "a parental-rights statute" that did no
more than effectuate the constitutional right of a parent to control the
education of her child, and therefore not controlled by Barnette or other
compelled speech cases. It held instead:
We conclude that the States interest in recognizing and protecting the
rights of parents on some educational issues is sufficient to justify the
restriction of some students' freedom of speech.
http://www.ca11.uscourts.gov/opinions/ops/200614462.pdf
Full disclosure -- the Florida ACLU, on whose board I sit, brought the
facial challenge.
I am curious to know what others think of the court's reasoning. Does
Barnette's right belong only to the student's parent? The panel
speculates (but does not decide) that a mature high school student might
have an as applied challenge to the statute, but relying on parental
notice / consent statutes relating to abortion, concluded that the burden,
if any, on the students who object to mandatory recitation was
insufficient to justify a facial challenge.
Off list replies are welcome, as are replies to the list.
Mike