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

The Endorsement Court

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government action. Lower federal courts and state courts have applied the test in hundreds of cases to evaluate the constitutionality of many types of religious symbols and displays, from a Latin cross erected on a city water tower, to the “In God We Trust” inscribed on U.S. currency, to Mississippi’s state flag, to Ohio’s state motto. As such, the endorsement test is one of the Rehnquist Court’s most important Religion Clause innovations. The thesis of this Essay is two-fold. First, it argues that the majority bias critique is the most persuasive criticism of the endorsement test, followed (at some distance) by the contention that application of the test compromises the dignity of the federal courts. What unites these two critiques is that they focus not on the content of the endorsement test itself, but rather on the identity of the decision-maker applying the test. The Essay also proposes a possible radical solution to these two critiques by suggesting that Congress could create an Article I court staffed by experts in a wide range of majority and minority religious traditions. This court would decide endorsement challenges to religious symbols or displays, subject only to discretionary (but full) Supreme Court review. As this Essay notes, creation of such a tribunal would raise a variety of difficult constitutional (and other) issues, but such a proposal would, nonetheless, be worthy of Congress’ serious consideration

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

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

The (Non)Uniqueness of Environmental Law

In everyday discourse, the label environmental law signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features of ecological injury justify treating environmental cases differently from other types of cases. This Article critically examines this claim, by identifying and evaluating seven potential paradigms that federal courts could use to relate environmental law to other areas of law, particularly administrative law, when deciding environmental law cases. In sum, the Article argues that when relevant under the appropriate legal standards, courts should consider the distinctive features of ecological injury when applying facts to law, and in some situations they should draw on their knowledge of those distinctive features when fashioning rules of general application. They should not, however, reach pro-environment decisions in a non-principled manner, automatically vote to protect the environment whenever the relevant legal materials prove substantially indeterminate, or otherwise act as though protection of the environment is an inherent aspect of the judicial role. Nor should they fashion completely distinct rules to govern environmental law cases or alter generally applicable rules to apply differently in environmental law cases. The point of the Article is not to suggest that environmental law should not exist as a separate legal category, but rather to suggest that generally judges need not approach environmental law cases differently from how they approach other types of cases

Justices Citing Justices

Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one article focusing on the self-citation practices of justices, however, the scholarly literature has not focused on these questions. Until now, that is. In this Article, I provide the first empirical analysis of how often justices on the modern court cite the law review articles and books of other justices. The most interesting findings revealed in this section of the Article include the fact that Justice Scalia was by far the justice whose academic work has been cited most often by other justices in the modern era, and that Justice Thomas is the justice who most often cites the academic work of other justices. In the second part of the Article, I address the question of why justices cite the academic work of other justices. These reasons include paying honor or homage to other justices, scolding other justices for not following the teachings of justices they claim to be allied with, and, most controversially, pointing out how other justices have departed from their previous personal precedent or the personal precedent of purported judicial allies. The Article argues that this latter rationale for citing the work of other justices is inappropriate and more well suited to teenagers and Twitter trolls than high court judges

Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools

Despite the Supreme Court\u27s 1987 decision in Edwards v. Aguillard, striking down Arkansas\u27 statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court\u27s Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause with extra vigilance in the public school context, Wexler argues that intelligent design, because it posits a being who created life and seeks to answer fundamental questions about human existence, constitutes a religious belief that cannot be constitutionally taught in public schools. Wexler rejects the argument that intelligent design teaches science and not religion on the grounds that whether or not intelligent design teaches a nominally scientific theory, it still violates the Establishment Clause by sending a forbidden message of exclusion to atheists and non-Christians. Finally, Wexler suggests that creationists and evolutionists should recognize the divisiveness caused by disputes over religion and take steps to reduce this divisiveness both inside and outside the classroom

Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a theory rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from academic standards or prohibiting the teaching of evolution, changing the word evolution in state science standards to something less controversial, stocking school libraries with texts advocating alternatives to evolution, and establishing elective creationism courses, among others. These steps have created significant public controversy in many states and have resulted in several lawsuits and threatened lawsuits. For instance, Kansas\u27s decision to eliminate macroevolution from state educational standards made national and international headlines in the summer of 1999, while a Louisiana law requiring teachers to read disclaimers about evolution was held unconstitutional by the Court of Appeals for the Fifth Circuit and missed being taken up by the Supreme Court by a single vote