mgraber at gvpt.umd.edu
Wed Sep 7 08:18:18 PDT 2005
A few thoughts.
1. My reminder that lawyers briefs are not always the most accurate
source of facts, particularly about the motivations of the other side.
It may be a good thing to hold off on much discussion until we see the
reply brief from California.
2. That no other state has this practice, even if true (see point 1),
may not have much bearing on the issue. Presumably, UC can say we don;t
count "Beat Music" even if that course is counted in every other state.
3. Notice that one solution to the excessive entanglement problem is not
to count any course with a religious perspective.
4. As Sandy Levinson and others repeatedly point out, public education
is decidedly non-neutral. There is a big 1AM problem if Muslim
perspectives are allowed, but not Christian perspectives, but the mere
fact that every course taught in a public school, including basic math,
relies on contested judgments, often contested value judgments, does not
determine whether contested religious judgments have the same status.
But again, much of this depends on the reply brief, which I have not yet
seen. As others have noted, it may well be that there is religious
discrimination taking place. Let's see Cal's defense.
>>> nebraskalawprof at yahoo.com 09/07/05 10:17 AM >>>
I think this case raises issues under every part of the 1A. It is not
about giving secular credit for religious courses. I assume a public
high school would be forbidden by the EC from teaching courses from a
pervasively religious perspective. No one is asking UC to give credit
for these courses. Rather, high school graduates with state-recognized
diplomas, good academic records, and high SAT scores have been
disqualified from admission to UC solely because certain of the high
school courses they took "are disqualified from approval as a-g
curriculum because of the Christian viewpoint added to standard subject
matter presentaion in those courses and their texts." [Quotation from
Apparently, graduates of these schools are eligible for admission to
every other state university in America based upon their having
graduated from these schoools (assuming their grades, SATs, etc., are
sufficient). The real EC problem in this case is that UC is excessively
entangling itself in the religious content of courses and textbooks used
at accredited Christian high schools in California.
Since UC appears to approve many secular courses from other schools that
also appear to be narrow and taught from particular viewpoints, as well
as narrow courses taught from non-Christian religious viewpoints, its
decision to disapprove the Christian-perspective courses appears to
1. viewpoint discrimination
2. a religious gerrymander under Lukumi
3. a discretionary and individualized process for determining which
courses from which high schools qualify students to apply to UC, a
state-funded university (see Sherbert/Smith/Lukumi)
4. excessive entanglement under the EC
5. perhaps denominational discrimination under the EC (some religious
perspectives are acceptable and others unacceptable--Rabbinic Literature
ok; Christian Literature not ok)
6. and perhaps even an indirect, but potent, attack on the right to
educate children in non-public schools under Pierce
Now, UC may claim it has a compelling interest in choosing a diverse
student body, but notice that this process seems to decrease--not
increase--diversity, becasue it excludes otherwise qualified students
who might well bring different ideas and perspectives because of their
theologically conservative worldviews. By the way, I wonder what UC does
with racial minority students who graduate from these disapproved
Christian Schools? Does it waive the restriction for these students?
I think it is a fascinating case. Discovery should be very interesting.
How do you explain that a course on "Beat Literature" or "Escape
Literature" or "Baseball Literature" is a better preparation for
participation in the collegiate community than a course on "Christianity
and Morality in American Literature?" The UC textbook and course
approval board will have lots of explaining to do, as they go through
the approved courses one by one to determine whether they are as
academically objective and broad as the Christian courses that were not
approved. Some of these secular courses may have been approved with
little or no investigation, and this will come out in discovery and add
weight to the charge that UC is guilty of using a discretionary course
review process as a mask for religious discrimination.
This would be a great case from which to teach a First Amendment course,
because it raises issues that cut throughout the course.
Under the logic of the UC position, studentss who graduate from
"pervasively sectarian" high schools are incompetent to attend college,
no matter how high their grades and test scores, no matter how
interesting their volunteer work and extracurricular activities, no
matter how much potential they have demonstrated for leadership and
compassion. This is an important case.
Cheers, Rick Duncan
Mark Graber <mgraber at gvpt.umd.edu> wrote:
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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University of Nebraska College of Law
Lincoln, NE 68583-0902
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Mordred: middle things are gone." C.S.Lewis, Grand Miracle
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