Thursday, May 24, 2007

Has Iowa State Violated the Establishment Clause?

I am speculating here, and one would need far more information than I have to decide. However, the US Supreme Court had this to say in interpreting the Establishment Clause of the First Amendment of the US Constitution in Epperson v. Arkansas:

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

It does not matter whether you consider philosophical naturalism to be a kind of religion, a kind of non-religion, the opposite of religion, or the "militant opposite of religion." It seems clear that philosophical naturalism is, at the least, a competitor of religion in the marketplace of metaphysical ideas. It also seems clear that the founders and the the Supreme Court in Epperson intended the Establishment Clause to avoid the establishment of any metaphysical beliefs as the official beliefs of the government.

Some questions:

It seems that there has been a lot of activity by the administration and faculty to promote, endorse and/or establish philosophical naturalism and/or philosophical materialism on campus. Is it enough to constitute a violation of the Establishment Clause of the US Constitution?

A very large number of the faculty seem to have confused methodological naturalism (which is arguably neutral as to metaphysics) with philosophical naturalism (which is definitely not neutral as to metaphysics). Has the administration done the same thing?

It seems that Hector Avalos has actively and openly spoken out and written with a goal of converting people from a theistic worldview to atheism or some other worldview. He seems to have promoted open hostility to traditional religions. Has he done this in class?

Has Iowa State been neutral towards the use of science to support inferences to debunk or attack religion, as opposed to the use of science to support inferences favorable to theistic worldviews?

8 Comments:

At May 24, 2007 4:14 PM, Anonymous Tom Gilson said...

I don't think the establishment clause applies to universities, even state universities.

 
At May 24, 2007 8:36 PM, Blogger Larry Fafarman said...

If Prof. Gonzalez is going to use the establishment clause or the free exercise clause in challenging the decision to deny him tenure, then he is going to have to say that his belief in ID is at least partly based on religion and not just on science. This is sort of a Catch-22 situation.

In the lawsuit by Christian schools against the Univ. of California, the Christian schools are claiming that their opposition to Darwinism is a religious belief and hence protected by the free exercise clause.

 
At May 24, 2007 8:43 PM, Blogger Larry Fafarman said...

Tom Gilson said...

>>>>>> I don't think the establishment clause applies to universities, even state universities. <<<<<

Logically, that seems inconsistent with applying the establishment clause to K-12 schools as happened in Kitzmiller v. Dover, Edwards v. Aguillard, and other court decisions. I think that the rationale for applying the clause to K-12 schools but not universities is that the K-12 students are younger and therefore more "impressionable."

 
At May 24, 2007 9:12 PM, Blogger Larry Fafarman said...

This is a follow-up to my preceding comment.

The Supreme Court said in Edwards v. Aguillard,

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable, and their attendance is involuntary . . . The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. (pages 583-584, citations omitted)

Also, footnote #5 says,

The potential for undue influence is far less significant with regard to college students, who voluntarily enroll in courses. "This distinction warrants a difference in constitutional results." . . . . Thus, for instance, the Court has not questioned the authority of state colleges and universities to offer courses on religion or theology. (citations omitted)

 
At May 25, 2007 6:28 AM, Anonymous Lawrence said...

Tom and Larry,

Widmar v. Vincent was decided based on the free speech clause of the First Amendment, which was applied to a state university. The language of the opinion made clear that the Establishment Clause does apply to state universities. As you note, the analysis is different than for K-12 schools.

Larry, Gonzalez would not need to admit that his ID views are religious. He just needs to argue that ISU has "established" philosophical naturalism as a favored metaphysical belief, and perhaps that he is harmed by that. Even agnostics are harmed by the establishment of an official state metaphysical worldview.

Also, I think any professor, student, or perhaps any taxpayer in Iowa could bring the suit. I was not thinking that it would be Gonzalez necessarily.

 
At May 25, 2007 9:17 PM, Blogger Larry Fafarman said...

Lawrence said,

>>>>>> Widmar v. Vincent was decided based on the free speech clause of the First Amendment, which was applied to a state university. The language of the opinion made clear that the Establishment Clause does apply to state universities. <<<<<<

There is not just the question of whether the Establishment Clause can be applied to state universities -- there is also the question of how the Establishment Clause can be applied to state universities. The situation in Widmar v. Vincent was quite a bit different from the ISU situation that you describe above. The syllabus in Widmar v. Vincent says,

The University of Missouri at Kansas City, a state university, makes its facilities generally available for the activities of registered student groups. A registered student religious group that had previously received permission to conduct its meetings in University facilities was informed that it could no longer do so because of a University regulation prohibiting the use of University buildings or grounds "for purposes of religious worship or religious teaching" . . . .

. . . . Held: The University's exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral.


>>>>>>> Larry, Gonzalez would not need to admit that his ID views are religious. He just needs to argue that ISU has "established" philosophical naturalism as a favored metaphysical belief, and perhaps that he is harmed by that. <<<<<<

OK, I agree -- but the courts being what they are, it might be hard to persuade them to accept that argument.

>>>>> I think any professor, student, or perhaps any taxpayer in Iowa could bring the suit. I was not thinking that it would be Gonzalez necessarily. <<<<<<

The federal courts generally do not give taxpayers standing to sue merely on the grounds that tax money is being misspent (as for an alleged unconstitutional purpose). However, the federal courts have made an exception for taxpayer suits on Establishment Clause grounds, but that exception is now being challenged. An article by Jay Sekulow in Townhall.com says,

They’re called “offended observers.” These are people who, on the mere sight of a monument of the Ten Commandments or a nativity scene in the town square, decide to file suits because they are taxpayers. In no other area of the law does the Court allow this kind of legal standing to bring challenges . . . .No other citizen can just sue because they pay taxes. It should be the same in the religion cases, and the Supreme Court has an opportunity to say “no” to these plaintiffs once and for all . . . .In Hein v. Freedom From Religion Foundation, separationists taxpayers have challenged a federal faith-based initiative program . . . The district court in Wisconsin dismissed the case, ruling that the taxpayers had no standing -- capacity to sue -- because there was no federal grant even at issue. The district court got it right. Unfortunately, the federal court of appeals reversed by a 2-1 vote and reinstated the lawsuit . . .In our brief filed with the Supreme Court, we asserted that no federal taxpayer suits are allowed in any other context aside from Establishment Clause suits challenging federal spending. That exception, the ACLJ brief notes, rests on a 1968 decision called Flast v. Cohen.

In a comment on the article, I wrote,

Taxpayer status is not a real issue (in Establishment Clause suits)
There have been many establishment clause lawsuits where tax expenditures and the plaintiffs' taxpayer status have not been issues -- e.g., school prayer cases and evolution disclaimer cases. Also, most citizens did not directly pay taxes to the federal government until after the ratification of the income-tax amendment in 1913 -- does that mean that citizens did not have standing to file establishment clause lawsuits before then?

IMO the solution to this establishment clause lawsuit problem is to pass a federal law capping the plaintiffs' attorney fee awards in both establishment clause lawsuits and free exercise clause lawsuits. In the last Congress, the House passed a bill (HR 2679) to eliminate these fee awards in establishment clause cases but a companion Senate bill (S 3696) was not voted on by the judicial committee.



S 3696 has been re-introduced as S 415.

Anyway, that is just the federal court policy -- state and municipal courts might now have policies that are different from that of the federal courts. Flast v. Cohen said, speaking of an earlier Supreme Court decision, Frothingham v. Mellon,

. . . .the Court conceded that standing had previously been conferred on municipal taxpayers to sue in that capacity. However, the Court viewed the interest of a federal taxpayer in total federal tax revenues as "comparatively minute and indeterminable" when measured against a municipal taxpayer's interest in a smaller city treasury . . . . This suggests that the petitioner in Frothingham was denied standing not because she was a taxpayer but because her tax bill was not large enough. (392 U.S. 83, 93) citation omitted

Of course, states are intermediate between municipalities and the federal government so far as tax revenues and expenditures are concerned.

Also, Ed Brayton's blog has an article about this issue of taxpayer standing in Establishment Clause suits, but anything that Fatheaded Ed says should be taken with a grain of salt -- he kicked me off his blog permanently because he disagreed with my literal interpretation of a federal court rule and he did not even give me a single chance to respond to his disagreement.

 
At May 26, 2007 6:20 AM, Anonymous Lawrence said...

Larry,

I only cited the Widmar case to show that the First Amendment and the Establishment Clause are applied to state universities. As I said, Widmar was decided on free speech grounds, so its facts and holding are not directly relevant to this kind of case.

 
At May 26, 2007 8:23 AM, Blogger Larry Fafarman said...

Lawrence said,
>>>>>> Larry,
I only cited the Widmar case to show that the First Amendment and the Establishment Clause are applied to state universities. As I said, Widmar was decided on free speech grounds, so its facts and holding are not directly relevant to this kind of case. <<<<<<<

OK, but I thought that you were trying to counter my statement about how the Supreme Court applies the Establishment Clause to state universities.

To go back, you originally said,

It seems that there has been a lot of activity by the administration and faculty to promote, endorse and/or establish philosophical naturalism and/or philosophical materialism on campus. Is it enough to constitute a violation of the Establishment Clause of the US Constitution?

. . . It seems that Hector Avalos has actively and openly spoken out and written with a goal of converting people from a theistic worldview to atheism or some other worldview. He seems to have promoted open hostility to traditional religions. Has he done this in class?


And I quoted the following from Edwards v. Aguillard:

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. . . .Students in such institutions are impressionable, and their attendance is involuntary . . . The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. (pages 583-584) . . .

. . .The potential for undue influence is far less significant with regard to college students, who voluntarily enroll in courses. "This distinction warrants a difference in constitutional results." . . . . Thus, for instance, the Court has not questioned the authority of state colleges and universities to offer courses on religion or theology. (footnote #5).


So the courts are much more lenient in applying the Establishment Clause to state universities than to public K-12 schools because: (1) the university students are less impressionable, less susceptible to peer pressure, and have less tendency to emulate teachers as role models; and (2) attendance in university courses is voluntary.

BTW, public high school courses in the bible as literature now appear to be acceptable so long as the schools do not proselytize.

 

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