Mirror of Justice

Some good news in a sacred-sites case

The Becket Fund has the news, here, that the federal government has agreed to settle a sacred-sites case and "make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site." Some church-state law professors filed an amicus brief in support of the tribes' position, which you can read here.

Garnett on Baylor, Title IX, institutional pluralism, and religious freedom

Along with Nathan Berkeley, I have a short piece up at National Review, about the ongoing campaign of some members of Congress against Baylor University.  Here, in a nutshell, is what's going on:

In a September 5 letter to the U.S. Department of Education, five members of Congress led by Representative Adam Schiff (along with Representatives Greg Casar, Joaquin Castro, Mark Takano, and Veronica Escobar) objected to “Baylor University’s claim to an exemption from Title IX’s regulations prohibiting sexual harassment . . .” and urged “the Department to clarify the narrow scope of this exemption.” Title IX prohibits discrimination based on sex in education programs that receive federal financial assistance.

In addition to calling for greater scrutiny of the scope of Baylor’s religious exemption, they also challenged the school’s fundamental eligibility for a Title IX exemption in light of allegations that “[Baylor] is no longer controlled by a religious organization.” The ideology driving this inquiry threatens Baylor’s religious freedom and that of many other religious institutions in America.

And, here is a bit of our take:

While showing genuine respect across differences must be a commitment we all make in our pluralistic society, people should not be able to use their identity to impose moral demands on the religious institutions they voluntarily enter into. And yet, that is precisely what Congressman Schiff and his colleagues are demanding on behalf of dissenting students.

Like so many American elites, these congressional representatives are so preoccupied with ensuring diversity within institutions that they fail to see the immense value in safeguarding diversity among institutions. Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity in this vital sector. In numerous ways, as one of us argued recently, our highly diverse society needs a diverse array of colleges and universities.

The mission of Baylor University is “to educate men and women for worldwide leadership and service by integrating academic excellence and Christian commitment within a caring community.” In a world increasingly awash with identity claims, Baylor’s identity matters, too.

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new book, All the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

"Aquinas at 800": Call for Papers

The University of Notre Dame is hosting what is shaping up to be an amazing academic conference:  "Aquinas at 800:  Ad multos annos."  Check it out!

"Life After Dobbs"

My colleague, Prof. Gerard Bradley, has a must-read essay in the latest issue of First Things, called "Life After Dobbs."  Bradley gives the Dobbs opinions very close reads, and identifies carefully what, on his reading, the case does, and does not, mean.  After canvassing the current state of play with respect to abortion regulation, he reports that "post-Dobbs developments are worse than pro-lifers expected, and far worse than most hoped. They cannot but be sobering to pro-life Americans. . . .  What, then, is to be done?," he asks.

In Bradley's view, Dobbs turns out to be not only a "neutral", "return the issue to politics", ruling but actually, in "five ways", a pro-life one, that establishes the basis of a legal strategy for protecting the unborn[.]"  Check it out!

Thomas Kohler on "Graduate Student Unions and Catholic Social Thought"

Prof. Thomas Kohler (Boston College) has an essay at Public Discourse called "Graduate Student Unions and Catholic Social Thought." Kohler is, of course, prolific and expert with respect to these topics.  

Longtime readers of Mirror of Justice are, I suppose, way-past-familiar with my skepticism regarding efforts to enlist the Church's social teaching -- including its embrace of workers' associational rights and its affirmation of the dignity of labor -- in support of contemporary public-employee unionism. This is not the matter, though, that Kohler is focused on (although, I suppose, his discussion of graduate-students' unions applies to students at public universities). Check it out.   

Penalver and Greenfield on the First Amendment right of (some) religious universities to use racial preferences

Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action."  They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. "  (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.)  In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case. 

First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]"  The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness."  Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination.  Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students.  But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.

Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]"  The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]"  (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)    

Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments."  But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination.  (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.)  The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal.  What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.   

Finally, the authors write that "the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith.  This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education."  But again, the Court did not impose a "colorblindness requirement".  Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions.  And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"

I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people.  Catholic universities need to do (much) better on both of these fronts.  But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.  

Garnett on 2023 SCOTUS

It's become a tradition (HT: Marc DeGirolami!) to join my friend, Prof. Lenny DeLorenzo, of Notre Dame's McGrath Institute for Church Life, for an end-of-SCOTUS-term podcast.  Here, if you are interested, in this year's.  We discuss (inter alia) the Groff and 303 Creative cases.