Too Much, Too Little: Religion in the Public Schools

The current state of religion in the nation\u27s public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation\u27s very identity to that highly contested theological proposition. Likewise, despite the fact that the courts have unanimously rejected attempts by state and local educational authorities to alter their science curricula to achieve religious purposes, school boards around the country continue to take constitutionally questionable steps to undermine the presentation of evolution, perhaps the most central and robust theory in all of biology. Even where school boards fail to take explicit steps to curtail the teaching of evolution, reports suggest that science teachers self-censor and teach less evolution (if any) than they should. Finally, although it is often said that schools should teach their students the knowledge and information they need to participate intelligently in the nation\u27s public affairs, these schools often fail to teach students anything at all about religion, despite its obvious importance and prevalence not only within our borders, but around the world as well

Fun with Reverse Ejusdem Generis

In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly commentary over the years. Unlike its more famous cousin, the canon of statutory construction known as “reverse ejusdem generis” is far less well known and understood. This canon states that when a statute includes a list of terms and a catch-all phrase, the terms in the list are limited to those that are consistent with the catch-all phrase. Unlike ejusdem generis, the canon of reverse ejusdem generis has not been the subject of an enormous body of scholarly commentary over the years. Indeed, it has been the subject of absolutely no scholarly commentary at all.Until now. For the first time in the history of the world, this Article provides a description of the canon, providing historical examples from cases involving such disparate topics as piracy, intoxicating beverages, and hazardous sludge. The Article then analyzes the canon, explaining the linguistic variables that make the canon more or less relevant in any given case. In particular, the Article argues that the more precise the catch-all term in a statute, the more likely the canon should apply to guide the statute’s interpretation. Finally, the Article looks in-depth at the landmark greenhouse gas decision of the Supreme Court in Massachusetts v. Environmental Protection Agency, which posed a reverse ejusdem generis issue even though no party or judge identified it as such. The Article argues that the failure to recognize that the statute posed a recurring interpretive problem rendered the treatment of the relevant statutory provision unsatisfying and unpersuasive. The Article concludes by arguing that courts, scholars, and litigants should recognize the existence of the reverse ejusdem generis canon and indeed call it by that name to ensure that future courts struggling with similar interpretive issues can more easily learn from earlier efforts and reach more informed conclusions

Intelligent Design and the First Amendment: A Response

In late 2004, the school board of the Dover School District in Pennsylvania passed a series of measures requiring teachers to inform students that evolution is incomplete and to make available to students a textbook on “intelligent design” (“ID”), a purportedly scientific theory suggesting that an intelligent agent created the universe and everything in it, including human beings. In December 2005, a federal district Judge ruled that the school’s policies violated the First Amendment. In a series of recent writings, including a full length book and several articles, Baylor University professor Francis J. Beckwith has argued that public schools may constitutionally teach ID. I disagree with Beckwith’s ultimate conclusion that teaching ID in the public schools would likely be constitutional. In my view, teaching the theory would raise significant problems under the First Amendment. More specifically, I disagree with Beckwith in three important substantive areas, namely whether courts should find that ID constitutes a religious belief, whether the Court’s decision in Edwards v. Aguillard casts doubt on the constitutionality of teaching ID, and whether teachers have any First Amendment academic freedom right to teach ID in direct contravention of clear school policy. In this three-part Article I address these issues in turn

Kitzmiller and the Is It Science Question

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board\u27s intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student\u27s perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, therefore failing the Supreme Court\u27s longstanding three-part Lemon test. And if finding the policy unconstitutional for at least three independent reasons was not enough, the judge also concluded that ID was not science, cast doubt on the school board\u27s truthfulness and ethics at the trial, and declared that the policy represented breathtaking inanity. In short, the decision was a slam dunk for ID opponents