Mirror of Justice

Amicus Brief Supporting Cert Challenging Religious Exclusion from Tuition Benefits

Our Religious Liberty Appellate Clinic at St. Thomas, joined by Prof. Doug Laycock and the Christian Legal Society, has filed an amicus brief supporting cert in Carson v. Makin, a case challenging Maine's exclusion of students at K-12 religious schools from tuition benefits allowed to students if they attend secular private schools. The program allows students in rural areas without a public school to receive tuition benefits to attend a secular private school but not a "sectarian" one. The First Circuit had upheld that exclusion on the ground that while the Supreme Court has forbidden exclusion of schools based simply on their religious affiliation ("status"), this exclusion was based on the fact that tuition funds would be used for religious teaching--a distinction reserved by the Court in its previous cases, Trinity Lutheran and Espinoza.

Here are a couple of bits from our summary of argument: 

[T]he status-use distinction collapses in the context of religiously grounded K-12 education. Religious schools teach the same secular subjects as other schools; in providing benefits assisting the teaching of these subjects, the state cannot discriminate on the basis that some schools also teach religion. To teach religion is what it means to be a religious school.... Some religious schools teach an essentially secular curriculum plus a religion course or chapel services. Other schools integrate religion into their secular subjects. These schools—and families who use them—do so because their religious identity permeates education. Whether called “belief or status” or “use,” “[i]t is free exercise either way” (Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part)), and the state presumptively cannot discriminate against it.....
              II. Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Although cert is always an uphill  climb, this case has a decent chance, I think, because the First Circuit's decision is such a blatant evasion of the Court's ruling in Espinoza.

St. Thomas 3L student Carolyn McDonnell participated in drafting the brief.

(See also Jon's post on the case and the ND clinic's amicus brief.)

ND Law's Religious Liberty Initiative files amicus brief in support of Maine families in school choice case

Notre Dame Law School’s Religious Liberty Initiative filed an amicus brief in the U.S. Supreme Court yesterday (March 11), representing the Council for Islamic Schools in North America, Partnership for Inner-City Education, and Union of Orthodox Jewish Congregations of America. The case is an important parental choice case, Carson et al v. Makin, that seeks to reaffirm that the First Amendment’s Free Exercise Clause precludes discrimination against faith-based schools. In the case, three Maine families are challenging Maine’s exclusion of religious school options from the state’s school choice program. The program provides tuition support for eligible parents to send their children to private secular schools, but denies that same support to other families who chose religious schools for their children.

Full article here.

Panel Discussion - Launch of the Academic Freedom Alliance

Panel Discussion - Launch of the Academic Freedom Alliance

 

https://us02web.zoom.us/webinar/register/6616153865367/WN_DGIf5Ib-Sj6VJOh9eMY1TQ

 

Q&A regarding the launch of the Academic Freedom Alliance (AFA). 

The panel will feature:

Keith Whittington -- Chair of the AFA's Academic Committee, Professor of Politics at Princeton University.

Jeannie Suk Gersen -- Member of the AFA's Legal Advisory Council, Professor of Law at Harvard Law School.

Ilana Redstone -- Member of the AFA, Associate Professor of Sociology at the University of Illinois at Urbana-Champaign.

Lucas Morel -- Member of the AFA's Academic Committee, Professor of Politics and Head of the Politics Department at Washington and Lee University.

Hosted by:

Brandice Canes-Wrone -- Donald E. Stokes Professor of Public and International Affairs, Professor of Politics, Princeton University.

Time

Mar 11, 2021 03:00 PM Eastern Time (US and Canada)

Webinar on "Educational Freedom in the Age of COVID"

The McCullen Center at Villanova Law will be hosting a webinar this Wednesday, March 10 from 4:30pm-5:30pm on education policy in the wake of COVID with experts on educational pluralism, charter schools, and school choice programs. Details below. The event is open to the public and registration is available here.

One of the unmistakable challenges of the COVID-19 pandemic has been its effect on K-12 education. As policymakers, school boards and administrators continue to develop new strategies for delivering education amid a pandemic, it is a key moment to consider long-term, sustainable improvements to the traditional public education system in the United States. This webinar will discuss approaches to education policy, drawing upon the expertise of the panelists on educational pluralism, charter schools and school choice programs.  

Join us for this discussion on educational freedom, featuring panelists:

• Ashley Rogers Berner, Director of the Johns Hopkins Institute for Education Policy and Associate Professor at the Johns Hopkins School of Education
• Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law at Notre Dame Law School
• Charles Mitchell, President & CEO of the Commonwealth Foundation
• Moderated by Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University

This lecture is approved by the Pennsylvania Continuing Legal Education Board for 1 Substantive Distance CLE credit. Please note registration is required. Attendees will receive an email from Eventbrite with the Zoom link on the day of the event.

On Mill's Influence on Moral Disagreement in Constitutional Law

I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:

What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.

Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.

Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”

A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.

Thinking clearly about "cancel culture"

I continue to be concerned by our growing tendency to weaponize shorthand expressions for complicated ideas in ways that shed more heat than light. “Cancel culture” is in the news everywhere one turns, and it is being deployed in ways that are both too broad and too narrow: too broad to the extent the term is applied whenever someone experiences consequences for their actions (even self-imposed consequences, as the brouhaha over Seuss Enterprises' decision to stop publishing six of the author's books reflects); too narrow to the extent that the term tends to be applied to the opposing political tribe, not our own. Before reflexively shouting “cancel culture,” let’s ask ourselves three questions:

 

First, what consequences have been imposed against the person deemed problematic? Has a social media post been criticized by others who find it offensive? That’s criticism, not cancellation. Has a person been disinvited from speaking at a conference or representing an organization based on something they have written or said? That may simply be enforcement of the boundaries surrounding an organization’s identity and values, not cancellation. (And yes, it’s problematic for a newspaper to stake out an identity that precludes the expression of controversial ideas.) Has a company been subjected to calls for a grass-roots boycott by those who find their practices or products offensive? That’s accountability in the marketplace of ideas, not cancellation. Has a company or person been effectively precluded from participating in the marketplace by those who control access to the marketplace? Now we’re getting close to cancellation, but we have to answer another question . . . .

 

Second, who is imposing the consequences? One genius of American pluralism is that people can live out their beliefs by joining together with others to support a particular way of life or moral perspective. Usually this happens through voluntary associations (churches, clubs, charities). But this can also happen through for-profit companies. If the mom-and-pop pharmacy down the street believes that the morning-after pill acts as an abortifacient and so declines to carry it, customers may choose them because of that stance, or customers may avoid doing business there because of that stance. No one would accuse the pharmacy of “cancelling” the big pharmaceutical company that makes the drug. As long as there is a functioning marketplace with viable options, we should applaud the diversity of moral claims reflected in our various associations.

 

But what if Amazon decides to stop selling a controversial book? Amazon – like other Big Tech companies – doesn’t just participate in the market; in a real sense, they function as gatekeepers to the market. When those gatekeepers act to remove certain people or ideas from circulation, we should be concerned. (That doesn’t mean it should never happen – e.g., I don’t think Amazon should sell a do-it-yourself kit for building a dirty bomb at home.) In my view, the power of Big Tech is what makes today’s “cancel culture” debates relevant. Many of the debates today are not really new at all, which leads to the last question . . . .

 

Third, am I tempted to describe as “cancel culture” something that has been happening for many years? Many debates about cancel culture today involve the use of racial, ethnic, or homophobic terms – the N-word most prominently. What’s changed, though, is the words that bring consequences, not our willingness to impose consequences for someone’s choice of words. There was a longstanding list of words that served as red lines not to be crossed (as George Carlin memorably explained), the F-word chief among them. In past eras, you could’ve lost your job, your reputation, and your social standing by uttering obscenities. In a way, we’ve traded the N-word for the F-word as the line not to be crossed, and I think that’s a healthy trade given each word’s history. The notion that words (or images) bring social consequences is not new.

 

Our social norms are changing. Maybe you disagree with those changes – if so, I suggest focusing your arguments on the substance of those changes and why you believe they are detrimental to society. Or maybe you think people shouldn’t experience consequences for the ideas they express – if so, I think your position would actually weaken the rough-and-tumble marketplace of ideas in our country, and that would be a shame. Or maybe you fear that certain arguments or beliefs are being removed from the marketplace, not through the free exchange of ideas, but through the top-down imposition of contested moral norms. If so, I share your concern, but the answer is not to issue blanket condemnation of the “cancel culture” bogeyman – it’s to take on an even more complicated topic: what should we do about Big Tech? (And no, I don’t know the answer to that one.)

A Religious Minority Enslaved: Addressing the Complicity of U.S. Companies in Uyghur Forced Labor

Mar 10, 2021 10:30 AM Eastern

https://www.zoomgov.com/webinar/register/WN_XSEr_vIMSvqSriGbd9Tczw

Please join the U.S. Commission on International Religious Freedom (USCIRF) for a virtual hearing about the ways in which U.S. companies and other entities facilitate the persecution of Uyghurs and other Turkic Muslims in China through forced labor and other practices that undermine international human rights standards in that country.

Since 2017, the Chinese government has detained millions of Uyghurs and other Turkic Muslims in internment camps across the Uyghur region, also known as Xinjiang. As part of its repression of these Muslim minorities, Chinese authorities have subjected them to forced labor in these camps, as well as in prisons, factories, and industrial parks. U.S. companies with supply chains in China—particularly those in the apparel, footwear, and other related industries—are inevitably entangled in Uyghur forced labor and therefore must take steps urgently to address this growing problem. This issue has become especially acute following the U.S. government’s formal determination of the atrocities in Xinjiang as “genocide.”

Witnesses will discuss the magnitude and complexity of the issues surrounding Uyghur forced labor and provide policy recommendations to the U.S. government.

Opening Remarks
• Gayle Manchin, Chair, USCIRF
• Gary Bauer, Commissioner, USCIRF
• Nury Turkel, Commissioner, USCIRF

Panel
• Scott Nova, Executive Director, Worker Rights Consortium
• Adrian Zenz, Senior Fellow in China Studies, Victims of Communism Memorial Foundation
• Olivia Enos, Senior Policy Analyst, Asian Studies Center, The Heritage Foundation

VIRTUAL EVENT: Shahbaz Bhatti 10th Anniversary Commemoration

Tuesday, March 2 marks the 10th anniversary of Shahbaz Bhatti's assassination for his courageous advocacy for Pakistan's religious minorities. RFI will remember his legacy with a virtual event on March 2, 2021, at 10 am EST, and hear from leading political and religious figures.

https://www.religiousfreedominstitute.org/rfievents/virtual-event-shahbaz-bhatti-10th-anniversary-commemoration