magarian at law.villanova.edu
Wed Sep 7 04:31:38 PDT 2005
I think Rosenberger precludes the state from denying credit for the
course with a religious bias, as distinct from the course with a musical
bias, based on Establishment Clause concerns.
The issue must be one about the state educational system's range of
permissible judgment. Exactly as you say, the state *may* grant credit
for the "silly opera" course -- or it may not, if it concludes that the
bias in the course undermines the intellectual rigor that the state
ordinarily requires for credit. Here, if I understand the case
correctly, the claim is that the First Amendment *precludes* the state
from ruling out the religious courses.
Of course, the case in that light arguably raises a kind of
Establishment Clause issue that wasn't present in Rosenberger: Must /
may the state allow religious authorities to substitute their judgment
for that of professional educators whose academic freedom we ordinarily
value? I would be troubled if a court categorically barred state
universities from critically assessing the content of religious courses,
as distinct from courses with other kinds of arguable intellectual
biases. Such a rule would go beyond the E.C. concern you raise, that
the state could be seen as endorsing religion; it would raise a much
more serious E.C. concern, that religious authorities have special
latitude to countermand discretionary state judgments. That concern
would be especially acute because the kind of discretion at issue --
discretion to decide the content of an academic curriculum -- is one
that has positive value in a system of free expression.
I certainly see the other side of the problem, and I don't know any more
about the facts of this case than I've read in this discussion. Maybe
(a) this is a case in which the state system exercised its discretion in
a patently outrageous way and (b) we should be categorically more
concerned about such outrageous decisions when they trench on religion.
But I would require a very strong showing of (a) before I put a court in
the position of second-guessing professional educators about substantive
questions of course content, and I don't consider (b) as self-evident as
some appear to.
Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
>>> mgraber at gvpt.umd.edu 09/07/05 6:37 AM >>>
Imagine Montgomery Blair High (public) School offers a course on Opera.
The course is taught by a teacher who is an opera buff, and the message
is constantly, that opera is the greatest achievement of Western
civilization. Carmen is wonderful, Magic Flute is wonderful, etc. I
take it that the UMaryland system may give credit for this course.
Indeed, am I correct in thinking that while many of us might think the
course one-sided and pedagogically silly (imagine if the entire course
is devoted to some obscure German), we would think the state may give
credit for the course.
If I am right, then the issue raised by Christian courses in Christian
schools cannot be one-sidedness and balance per se, as with respect to
secular materials the state may take one-sided positions. Teachers may
teach that Magic Flute is better than Carmen.
Rather, the issue MAY be related to endorsement and establishment.
Would it be fair to say, assuming the textbooks are academically
competent (i.e., I take it Ric and others would agree that if it turns
out the texts for the course claim that Washington was president during
the American Civil War, then the state may appropriately deny credit),
that the issue between us may be that proponents of this litigation
think that private schools may not only take sides on issues to which
the state must be neutral, but get course credit, while I think the
state may legitimately decide (and may even be required by the
establishment clause to decide) that secular credit may not be given for
a course that has a religious bias.
Mark A. Graber
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