But there is the rub, Rick, does the disclaimer do what you say that it does? I don't think so. To focus on parents and ignore impressionable children, peer pressure, stigma and other forms of psychological harm is problematic. To the typical child, I suspect, the teacher does not stop being a teacher merely because the shcool day is over. On the other hand, I can see no solid EC objection if the teacher teaches religion in some program or another that doesn't begin until school has been out for a few hours. What is so unseemly and what betrays, I fear, your argument, is this mad rush to teach religion as soon as school is over, a patently transparent attempt to blur the distinction between school and after-school events. It is too bad that the majority didn't get it in Good News, but that case is distinguishable and perhaps a Santa Fe majority would come together to say so.
(Of course I cover this general point at great length in my religion in school article.)
-----Original Message-----
From: Rick Duncan [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, June 11, 2003 3:15 PM
To: [EMAIL PROTECTED]
Subject: Re: Teacher Fights for Right to Teach Religion After School
--- "Newsom, Michael" <[EMAIL PROTECTED]> wrote:
> If a disclaimer is enough, Rick, then I take it that
> you find no EC
> objection if the federal government decides to
> provide whopping amounts of
> financial assistance to Bahai's, but issues a
> disclaimer that it is not
> really preferring Baha'is. This can't possibly be
> right, can it?
Once the school day is done the teacher is no longer
acting as an agent of the state. The disclaimer simply
eliminates anyone from mistaking her private
participation as that of the state. Direct
preferential payments of govt. funds to a religious
group are clearly attributable to the state for
purposes of the EC. A disclaimer can not alter the
facts; its purpose is to make the fact that Mrs. Smith
is acting in her private capacity clear to the parents
when deciding whether to enroll their children in the
private, after school club.
>
> Or how about this? A teacher is free to lead prayer
> in her classroom,
> students have the right to opt out, and the school
> issues a disclaimer.
> Apart from the fact that the caselaw would seem to
> hold that we have an EC
> violation here, would you find this acceptable?
Again, when acting as a teacher during the school day,
the teacher is an agent of the state and therefore may
not *in that capacity* lead the class in voluntary
prayer. But again, once the school day is done, Mrs.
Smith-the-private-citizen is free to lead a Good News
Club, so long as a disclaimer makes clear that the
school is not endorsing or sponsoring the club.
Rick
>
> -----Original Message-----
> From: Rick Duncan [mailto:[EMAIL PROTECTED]]
> Sent: Wednesday, June 11, 2003 1:51 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Teacher Fights for Right to Teach
> Religion After School
>
>
> --- Levinson <[EMAIL PROTECTED]> wrote:
> > I confess I find it batty to say that it is
> > sufficient if the parents realize that the state
> is
> > not "endorsing" an activity even if the highly
> > impressionable children continue to regard their
> > beloved Ms. Smith, who teaches them reading,
> > writing, and arithmetic for seven hours/day, as an
> > authority figure when she moves, at 3:30 into
> > another room to spread the good news about
> > salvation. It is not Rick, I hasten to add, who
> is
> > batty, but, rather the Supreme Court if this is
> > indeed what they said in the Good News case.
> >
>
> Well, Sandy, as Emily Dickinson might have said, I
> must be batty too, because I think that parents
> don't
> need federal courts or school boards to protect
> their
> children from after school programs in which the
> parents wish to enroll their children. A disclaimer
> sent to the parents is all that we need to protect
> any
> conceivable EC interest.
>
> The fact is that this is a private program and Mrs.
> Smith is a private citizen participating on her own
> time. The children are participating only because
> their parents have given permission after full
> disclosure about the nature of Mrs. Smith's
> participation and the school's non-endorsement. No
> one
> is harmed by this program. The children are
> protected
> by their parents (and by Mrs. Smith, who is beloved
> not because she works for the government during the
> school day, but because she is a kind and loving
> person). There is no reason in law or in justice to
> deny Mrs. Smith the opportunity to participate in
> this
> program and the children the opportunity to
> associate
> with Mrs. Smith, their beloved friend and fellow
> citizen. --Rick
>
> > sandy
> >
> > -----Original Message-----
> > From: Rick Duncan <[EMAIL PROTECTED]>
> > To: [EMAIL PROTECTED]
> > Date: Wed, 11 Jun 2003 09:43:49 -0700
> > Subject: Re: Teacher Fights for Right to Teach
> > Religion After School
> >
> > --- Levinson <[EMAIL PROTECTED]>
> wrote:
> > > I think that the age of the kids matters. I
> think
> > > that schools can certainly control such
> activities
> > > of teachers of elementary students, because the
> > > danger of "endorsement" is simply overwhelming.
> >
> > But in the Good News case, the Court made clear
> that
> > for purposes of endorsement and coercion, the
> focus
> > should be on the parents of elementary school
> > children
> > and not the children themselves. A disclaimer sent
> > to
> > the parents of participating students should make
> > clear that the teacher is participating as an
> > individual citizen and not as an employee of the
> > school system. The parents can then counsel their
> > children about whether to participate, and can
> deny
> > permission for participation if that seems
> > appropriate. There is no real danger to anyone's
> > rights here (other than the free speech and
> > associational rights of the teacher).
> >
> > Rick Duncan
> >
> >
> >
> >
> > > This might well be true for middle-school age
> > > students as well. By the time they get to high
> > > school, it's more realistic for the school to
> > > require only that the teacher empahsize that she
> > is
> > > acting as an individual and that the school
> system
> > > neither endorses or opposes what she is doing.
> > > (Indeed, this would be a good opportunity to
> teach
> > > some basic civil liberties doctrine to
> youngsters
> > > badly in need of such instruction.)
> > >
> > > sandy
> >
> >
> > =====
> > Rick Duncan
> > Welpton Professor of Law
> > University of Nebraska College of Law
> > Lincoln, NE 68583-0902
> >
> > "Politics is not a bad profession. If you succeed
> > there are many rewards, if you disgrace yourself
> you
> > can always write a book." Ronald Reagan
> >
> > __________________________________
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>
>
> =====
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> "Politics is not a bad profession. If you succeed
> there are many rewards, if
> you disgrace yourself you can always write a book."
> Ronald Reagan
>
> __________________________________
> Do you Yahoo!?
> Yahoo! Calendar - Free online calendar with sync to
> Outlook(TM).
> http://calendar.yahoo.com
>
=====
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"Politics is not a bad profession. If you succeed there are many rewards, if you disgrace yourself you can always write a book." Ronald Reagan
__________________________________
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