Religion as evidence

[Vance R Koven]

In an earlier message Chip Lupu referred to (then) Judge Breyer's opinion
in a case involving Longmeadow, MA. The actual cite is New Life Baptist
Church Academy v. Town of East Longmeadow, 885 F 2d 940 (1989), in which
the First Circuit held that the town's approval procedures for the secular
components of the academy's curriculum did not violate the FEC or EC.

In passing, I note that a member of this list, Michael Stokes Paulsen, was
listed as participating in the brief for one of the amici.

It would appear that the academy's biggest mistake in the case was
offering to accept most of what the town was looking for provided it could
be characterized as other than an approval process. It seemed rather
churlish of Breyer (joined by Selya and Aldrich JJ) to disregard this
element of characterization as going to the heart of the academy's
objection. He was not about to give any quarter, however, to mere face.

One gets the impression that he was just not going to let every "wacko
religion" require a change in procedure in measuring how a school educates
its children. The academy had suggested, among other things, that the
school district could figure out how well it was doing by seeing how the
students did on standardized tests. The court was unimpressed, since that
wouldn't let the district into the classroom to make sure the content and
presentation were up to its presumably superior snuff.

The reasoning in the case, relying heavily on Lee and on Blackmunian
jurisprudence,  fell squarely in the secularist tradition that
emphasizes the government's "freedom of administration" over the academy's
"freedom of religion." I wonder what text he was reading. I also wonder
whether as a circuit court judge he would rule the same way a decade later
when the wind has been blowing so differently.

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