As I understand it, Steve Shiffrin's suggestion presents
nonparallelism between religious "courses" and school-offered
courses -- that is, the former are taught by religious personnel off-
site, and the latter are taught by public employees on-site. If the
offerings are sufficiently rich, this takes care of the "dead time"
problem. (Cf. the Cleveland voucher case and the question whether
Cleveland voucher students had secular school options equivalent
to their religious school options). But it will be very difficult for courts
to determine that sufficiency (what principles will do the job, other
than market preference -- either all parents are satisfied, or they are
not).
And there remain other problems -- one is the truancy/coercion
problem that I noted in my last post. Another is that parents can
select their own religious teacher, but cannot select their own
teacher in the other course offerings. And that means the religion-
choosing parents get more control over the content of their child's
"course" than the other parents. (I must say I don't understand why
we should be twisting ourselves into pretzels to design something
which is entirely unnecessary in a world in which there are plenty of
non-school hours for religious education.)
Chip
On 18 Feb 2005 at 15:51, Steven Shiffrin wrote:
Date sent: Fri, 18 Feb 2005 15:51:40 -0500
From: Steven Shiffrin <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
Subject: Re: 21st Century Zorach
Send reply to: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
<mailto:religionlaw-
[EMAIL PROTECTED]>
<mailto:religionlaw-
[EMAIL PROTECTED]>
> Suppose instead of defending a Zorach program in terms of
> accomodation, a school board says that religious education in specific
> religious or ethical traditions is valuable and arguably best taught
> by believers in the relevant tradition. At the same time it does not
> believe chess is as valuable (therefore no release for chess) and
> worries that if it taught courses in particular traditions it would be
> too expensive and raise even more serious establishment clause
> concerns. Suppose further that it offers course options, not "jail"
> for those who do not choose to leave the building for religious or
> ethical instruction. Should this violate the Establishment Clause?
> Steve
>
> Lupu wrote:
>
> >Accommodation is only a legitimate argument or concern if the state
> >is creating a burden on religious freedom. But there is no conflict
> >between compulsory education and religious education, because there
> >are ample days and hours in which parents are free to educate their
> >children in the ways of their faith. The only state- imposed burden
> >in this story is the one imposed on the students left behind.
> >Released time is an anti-accommodation to the students who don't
> >participate.
> >
> >Chip ("every government promotion of religion can be conveniently
> >labelled an accommodation") Lupu
> >
> > Jim Henderson wrote:
> >
> >Isn't there something to be said for accommodation? Here comes
> >big old bully State, grabs parents by the lapels, and threatens life,
> > liberty and property unless child is put in a school setting from
> >age 5 to as late as age 20, for as many as 7 to 8 hours a day, for at
> >least 180 days in the year, including all weekdays. The
> >interposition, of course, is welcomed by parents who are daunted by
> >the process of educating their own children, or who lack skills
> >necessary to do so. But it is an interposition by force of law. And
> >its impact is not lessened by the fact that some parents choose to
> >spend extra money on top of their property taxes to school their
> >children in private schools or at home.
> >
> >So bully State is pushing parents around, and one small
> >accommodation of need for religious training is made. What
> >constitutional provisions other than the religion clause have been
> >interpreted to allow (not require) accommodation?
> >
> >Jim "Religion Can't Be Different Only When You Want to Squish
> >Religionists" Henderson
> >Senior Counsel
> >ACLJ
> >
> >
> >Ira C. ("Chip") Lupu
> >F. Elwood & Eleanor Davis Professor of Law
> >The George Washington University Law School
> >2000 H St., NW
> >Washington D.C 20052
> >
> >(202) 994-7053
> >
> >[EMAIL PROTECTED]
> >[EMAIL PROTECTED]
> >
> >_______________________________________________
> >To post, send message to Religionlaw@lists.ucla.edu
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> >
> >Please note that messages sent to this large list cannot be viewed as
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> >
> >
> >
>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
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>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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