The Student Protection and Affordable Higher Education Act?

May 3rd, 2012 by Joseph M. Knippenberg
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This is an important week on college and university campuses across the country.  My colleagues and I are busy grading the many papers and exams that come in at the end of the semester.  Our graduating seniors are celebrating the (we, and they, hope) successful end of their undergraduate experience.  And admission directors are expectantly checking the numbers of our incoming classes—we used to call them freshmen; now, “first year student “ seems to be the term of art.

But we denizens of college campuses are not the only ones thinking about higher education.  Politicians and pundits have gotten in on the act, and you know that when that happens, trouble follows.

I’ll leave aside the constant scrutiny and meddling that is the price we pay for the government grants and guaranteed loans that help our students afford their educations and that have enabled them, collectively, to go into more than $1 trillion in debt.

If a couple of recent op-eds are to be believed, that’s just the tip of a very big iceberg.

Let me start with Katrina vanden Heuvel in the Washington Post.  Her solution to the heavy load of student debt is to make public colleges and universities free.  We can afford it, she insists, since it would only cost us $30 billion a year, a sum we can surely squeeze in one way or another from the very wealthy.  To begin with, I frankly don’t know where she gets that number, as my back-of-the-envelope calculations come up with a number roughly three times as large.  In 2009, roughly 14.8 million students were enrolled in public colleges and universities.  The average tuition room and board at those institutions was $12,800.  Generously assuming that half of that cost went to room and board leaves $6400 for average annual tuition.  Do the math and you get a number somewhat north of $90 billion.

I’m sure there are ways of driving that number down.  Forcing most students to start at two year colleges, for example, would surely reduce tuition costs.  Putting more instruction online everywhere would also likely lower instructional costs and hence tuition.

On the other hand, when you make something free, you inevitably increase demand for it, which is surely one of the things that many of those who fret about the cost of higher education want.  The talk is always about access.  Lower the out-of-pocket cost, and you presumably increase access.  More access means higher enrollment, and higher enrollment means higher cost to those who are providing the subsidy.

And then there’s this: tuition represents only part of the cost of educating a student.  The average public contribution to the cost of educating a student ranges from 70% (at community colleges) to 50% (at prestigious public research universities).  Let’s generously assume that state taxpayers provide a dollar-for-dollar match for the tuition students pay (whatever its source).  Because more students will choose to attend public colleges and universities “for free,” the cost to taxpayers will go up.  This is not speculative.  In Georgia, for example, there were just under 164,000 students enrolled in the state system in 1993, when the HOPE Scholarship was inaugurated.  By 2005, enrollment had climbed to over 218,000.  Over that same period, state appropriations went from $1 billion to $1.4 billion.

In the end, I don’t know what the real cost of vanden Heuvel’s proposal would be.  I just know that $30 billion is exceedingly low, and that any such federal program would put the states on the hook for a good deal more.  This is beginning to sound an awful lot like the healthcare reform discussions of a couple of years ago.

But, you could argue, money spent on higher education is money well-spent.  It’s an investment, in other words.  Well, perhaps, if the education and credentials the students receive enables them to be (proverbially) more productive members of society.

That’s the point of Frank Bruni’s New York Times column.  Here’s the core of his argument:

According to an Associated Press analysis of data from 2011, 53.6 percent of college graduates under the age of 25 were unemployed or, if they were lucky, merely underemployed, which means they were in jobs for which their degrees weren’t necessary. Philosophy majors mull questions no more existential than the proper billowiness of the foamed milk atop a customer’s cappuccino. Anthropology majors contemplate the tribal behavior of the youngsters who shop at the Zara where they peddle skinny jeans.

I single out philosophy and anthropology because those are two fields — along with zoology, art history and humanities — whose majors are least likely to find jobs reflective of their education level, according to government projections quoted by the Associated Press. But how many college students are fully aware of that? How many reroute themselves into, say, teaching, accounting, nursing or computer science, where degree-relevant jobs are easier to find? Not nearly enough, judging from the angry, dispossessed troops of Occupy Wall Street.

The thing is, today’s graduates aren’t just entering an especially brutal economy. They’re entering it in many cases with the wrong portfolios. To wit: as a country we routinely grant special visas to highly educated workers from countries like China and India. They possess scientific and technical skills that American companies need but that not enough American students are acquiring.

Now, I’m as happy as the next guy—nay, happier than the next guy—to argue that the value of a college education (especially a liberal education) can’t be measured in mere dollars and cents.  A philosophy major who happens for the moment to be a barrista may be capable of quite deep thinking on and off the job.  Someone whose imagination and moral sensibilities have been formed by an encounter with great literature might be an excellent parent and fellow citizen.

What troubles me at the moment is not so much Bruni’s impoverished and merely utilitarian view of the purposes of higher education; rather, it’s his proposed solution to the mismatch between what our students are learning and what our economy needs.  “I’d…call for government and university incentives to steer students into the fields of studies that will serve them and society best. We use taxes to influence behavior. Why not student aid?”  So the government knows better than students what’s good for them?  To be sure, he uses the gentle language of incentives, and not the compulsion of central planning, but the fact remains that, for Bruni, the incentives provided by the marketplace (there are jobs for accountants, but not for anthropologists) just aren’t good enough, or rather strong enough.  We can’t leave it to students, parents, and professors; we’ve got to get the government involved.

Once again, I hear echoes of the healthcare debate.

If you take the wishful thinking of two columnists for our two most prominent newspapers of record, what you get is, in effect, a federal takeover of higher education.  We’ll pay for the whole thing, and tell you what to study, because we know what areas of study serve society and you best.

There are all sorts of problems in American higher education.  But this cure is so much worse than the disease.

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Does Technology Inhibit or Enhance Community?

April 10th, 2012 by Andrew House
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In a recent Wall Street Journal article titled “The Web’s Cockeyed Cupids,” Jonah Lehrer argues that internet matchmaking sites are no more effective than chance meetings at helping people find long-term relationship partners due to the fact that without meeting the prospective mate in person, “[the people who use these websites] can’t assess the variables that are most predictive of long relationships, such as conversational habits and problem-solving tendencies . . . as a result, online daters are more likely to focus on less relevant factors, such as appearance and personality type.” Lehrer contends that online dating sites are typically founded on the two following false premises: that relationship happiness can be produced through matching quantifiable characteristics, and that “choosing a mate should be a rational choice, in which people carefully comparison-shop for partners.” Lehrer notes that the academic evidence indicates that the most valued factors in marital happiness surveys are not factors that are observable on internet profiles. He also points to longstanding research that indicates the inexact relationship between the heart’s preferences and the mind’s reason, which calls into question the premise that one can rationally choose what the heart will love based simply on a few characteristics listed on an internet profile.

Lehrer’s concern is that online matchmaking reduces romance and marriage to a shopping trip where one compares the available goods and simply selects the best available deal. The ideal marriage is limited to merely a beneficial pairing of superficial factors. This is problematic on two fronts: first, it bases prospective marriage relationships on mere sterile, fact-based attraction without recognizing the full complexity involved in a long-term committed relationship; secondly, it reinforces the popular idea that individual preferences and desires are of utmost importance and must be satisfied for their own sake, which is an idea with devastating consequences predicted by such writers as Alexis de Tocqueville, Neil Postman, and Wendell Berry.

The internet, as part of the most recent wave of technological advance, has changed the way that people interact, whether in couples or in society in general, by making it much easier to make decisions based solely on personal preferences. Technology increases the ease of individual gratification and provides no incentive for people to look beyond satisfying individual tastes. In the case of online matchmaking, the technology fails to account for the more fundamental bonds (beyond physical attraction and similar restaurant tastes, for example) that underpin a commitment to choose to love one’s spouse for the rest of one’s life. Instead, the technology offers the ability to sort possible mates by one’s desired traits and shared interests alone. The technologies themselves may be extremely useful for a number of good things, but they are not an unqualified good because they also enable us to pursue objectionable ends, while tending to short-circuit the very relational nature of traditional courtship.

The influence of technology on interpersonal interactions is certainly not limited to online matchmaking. A new ad campaign by AT&T touting the speed of their network and devices similarly subverts an ostensible good by enabling the pursuit of a less-than-desirable end. In these ads, a pair of actors uses their faster network and devices to stay ahead of their neighbors and coworkers. At first glance it seems that the devices have fostered better community relationships because the people know the news about each other sooner and can be more timely with assistance, encouragement, etc. However, the ads’ protagonists are unfailingly smug in gloating about the superiority their network gives them over others, which is a decidedly less positive behavior. Network speed is a fine selling point, but it raises the question of how mobile devices have changed interpersonal interactions.

Having better information that can help develop community and solidarity among coworkers and neighbors could be an obviously positive development. Unfortunately, when the information is pursued not for the communitarian end of mutual edification but for the individual satisfaction of artificial superiority, it is instead a negative development. Technology has the potential to make us more self-centered and isolated. Although the quantity and speed of communication and access to information has increased dramatically, it would appear that those gains have come, to some degree, at the expense of the quality of that communication and information.

The factor of technology plays a similar role in both online matchmaking and the mobile device ads. Both technologies present opportunities for good, for people to be more likely to find a spouse and to be able to communicate more quickly and frequently with one another. However, the technologies also reveal our failings in society in that they are marketed based on the appeal of less-admirable purposes, to pursue superficial relationships or artificial superiority. The problem isn’t so much with the technology, but with what the technology reveals about us and with the ends that technology enables us to pursue.

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A Right to Use Contraceptives?

March 12th, 2012 by Joseph M. Knippenberg
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A few weeks ago, several of us affiliated with GFC were among the early signatories of a letter describing as “unacceptable” the Obama Administration’s supposed accommodation of religious freedom in its rule mandating contraceptive, sterilization, and abortifacient coverage in health insurance under the Affordable Care Act.

Since then, the waters have been muddied by one brouhaha after another.  Some advocates of healthcare reform (I’m trying to be as neutral as possible in describing it) have argued that the issue isn’t religious liberty, but rather the right of women to have access to contraceptives.  Here’s a recent example of this argument:

It seems abundantly clear to me that the very vast majority of America’s Catholics, men and women, do not share their Church’s views on contraception (and a majority appear to be at peace with the idea of employers providing coverage for contraceptives).

So here is the problem. Should the American government ignore the public good and the will of the majority of its Catholic citizens in deference to the theological beliefs of the Catholic Church?

To whom is the state accountable? An institution representing Catholics or Catholics themselves who on this issue seem to be exhibiting that aforementioned independent streak? Or neither, since it could be argued that the state ought not get in the business of religiously categorizing its citizens nor the institutions which mediate the provision of essential services (i.e., health care) to citizens.

Church-State issues are exceedingly complex and I am sympathetic to the Church’s position. Yet religious freedom must also entail not only the right of non-believing Americans to be free from religion. It must also–note this–encompass the right of believing Americans to be free from those aspects of their own faith with which they do not agree.

Consider the last sentence: Religious freedom “must also…encompass the right of believing Americans to be free from those aspects of their own faith with which they do not agree.”  I’m not quite sure what Georgetown professor Jacques Berlinerblau, the author of this statement means.

Perhaps he means only this: that no “merely” religious prohibition can have the force of law.  If I’m not supposed to take Communion in the Roman Catholic Church without first having gone to Confession, I cannot be punished by the state for failing to meet this requirement.  Or if I apostasize from a particular religion, I can’t be put to death.  Professor Berlinerblau will get no argument from me there.

But, given the context, I’m not convinced that’s all that he means.  He’d surely go at least this far: I have the right to call myself a Catholic even if I don’t agree with all the teachings of the Roman Catholic Church.  Here I begin to have some trouble.  We’re all entitled to believe whatever it is we want, but religious freedom surely also means that a congregation or church can “excommunicate” a member whose behavior or heterodoxy puts him or her beyond the pale of the faith.  The excommunication doesn’t carry with it any civil disabilities, and the person remains free to believe whatever he or she wishes.  While John Locke might say that every person is orthodox to himself, it remains the case that denominations or congregations are free to decide whether they will hold a creed in common and what its content will be.  So it isn’t a violation of religious freedom for a church to teach something and to declare that such-and-such a person is out of communion with it because he or she disagrees.

But, again, given the context, Berlinerblau wants to go further, I think.  He wants to say that a Roman Catholic woman has a right to use contraceptives despite what her church teaches.  I agree.  And I think that as a matter of public law, no Roman Catholic could disagree.  (There may be no right to do wrong, but denying a right to do wrong is not the same thing as calling for the civil or criminal punishment of the wrongdoer.)

This brings me to the core of Berlinerblau’s position, as I understand it.  If Roman Catholic women have an undeniable right to use contraceptives, then they have a right to compel the Church to pay for their contraceptives.  A right is only meaningful if it can be exercised, and it can be exercised only if it is subsidized.  Not to put too fine a point on it, this is a mistake.  My right to something may well involve a claim on your respect—more precisely, your non-interference—but it is not always or necessarily a claim on your assistance.  My rights to life, liberty, and the pursuit of happiness are rights to be free from your interference, not claims on your assistance.  My right to the free exercise of religion is of the same sort: where it’s valid, it’s a right of non-interference.  So if someone claims the right to be free to ignore the teachings of a church, the church can’t impose civil or criminal penalties.

Of course, Berlinerblau might say that the right to the full range of healthcare services is different.  It’s not a right to non-interference, but rather a claim on someone—the government—to provide it or to subsidize its provision.  A right so conceived is one of three things.  It may be a strong policy preference, a “want” dressed up in language that seems more obligatory.  It can be a claim created by positive law, as when I have a right to vote if I meet the conditions of eligibility set by the government.  Under these circumstances, another word for it is “entitlement.”  Or it can be a claim that follows from a definition of the human person and the requirements of human flourishing, a “human right,” in other words.

If it’s the first, then it’s a claim that in no way in and of itself trumps my resistance.  You want free stuff; I don’t want to give you free stuff.  If it’s a claim created by positive law, then, under our Constitution, the law is valid if it doesn’t contravene any constitutional rights.  I might be entitled to healthcare, but not where the entitlement comes at the expense of religious liberty.  You might personally care more about healthcare than about religious liberty, but there’s a constitutional right to the latter  and not to the former.  Amend the Constitution, or provide healthcare in a way that’s consistent with it, as written.  Finally, there’s healthcare as a human right, just as there’s religious liberty as a human right.  We’ve moved into the territory of philosophy or international declarations.  Both are interesting and worth thinking about, but there remains a question about how the philosophy or the international declaration is translated into domestic law.  That’s a job for a legislature operating in accordance with—that is to say, within—its constitutional authority.

Any way we look at it, we’re back at the First Amendment free exercise clause.  The Obama Administration can issue regulations enforcing the Affordable Care Act, but only in accordance with the Constitution.  It can administratively create a right to free contraception, sterilization, and abortifacients, but not in a way that abridges religious freedom. Your right to use these healthcare services can’t come at the expense of my religious freedom.

What this means in practice should be pretty clear: within reasonable limits no one can be denied access to these services.  But no religious organization or institution can be required to pay for those services.  The right to contraception is at most a right to non-interference.  It’s not a right to subsidy.

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W(h)ither Marriage and Childrearing?

February 20th, 2012 by Joseph M. Knippenberg
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A New York Times article reporting the results of this research brief begins in the following way:

It used to be called illegitimacy. Now it is the new normal. After steadily rising for five decades, the share of children born to unmarried women has crossed a threshold: more than half of births to American women under 30 occur outside marriage.

True enough, but misleading and problematical nonetheless.  To begin with, as the article acknowledges, in 2009, 40% of childbirths occurred outside the context of marriage.  Despite the appallingly high percentage of out-of-wedlock births, the “norm” is still marriage.

To be sure, among younger women the proportion of out-of-wedlock births is much higher—87% for 15-19 year-olds and 62% for 20-24 year-olds.  At and after age 25, the proportion drops significantly—to 34% for 25-29 year-olds and even lower (roughly 20%) for older women.  What’s more, according to the definitive CDC study, the cohort with the highest birthrate is women in their early 30s (97.7 per 1,000, barely more than the 96.3 birthrate for women 25-29).  Women in their late 30s are more likely to have children than teenagers (46.5 to 39.1).  Viewed in this light, the “normal” mother is an older woman more likely than her younger counterpart to be married.

This isn’t to say that we should be celebrating.  The proportion of children born outside marriage has been increasing all too rapidly among all ages and races.  While the birthrate among married women is still significantly higher than among their unmarried counterparts, the latter rate has almost doubled in the past 30 years, while the former has declined by more than 10% over the same period.

There are other revealing ways of looking at the data.  For example, in 2009, 73% of the African-American births were to unmarried women, compared to 53% of those to Hispanic women and 29% to white women.  All those percentages were higher than they had been twenty years earlier.  But lest we regard “our” problem as largely one of race, we should consider the data from this CDC report, from which we learn that in 2007 the percentages of births to unmarried women were significantly higher in the more ethnically homogeneous countries of Iceland, Norway, and Sweden than in the more diverse U.S.  While the problems of the African-American family are well-documented, the Scandinavian examples suggest that social policy and permissive cultural norms can also weaken traditional family structures.

This is a problem for reasons the Times article mentions.

The shift is affecting children’s lives. Researchers have consistently found that children born outside marriage face elevated risks of falling into poverty, failing in school or suffering emotional and behavioral problems….

Reviewing the academic literature, Susan L. Brown of Bowling Green State University recently found that children born to married couples, on average, “experience better education, social, cognitive and behavioral outcomes.”

Children are clearly better off in an intact two-parent household.  And to maintain such a household, there’s no substitute for marriage.  While a majority of out-of-wedlock births to white and Hispanic mothers occur in households with cohabiting parents, these relationships are much less stable than marriage.  According to a study reported in the Times article, two-thirds of them break up by the time the child reaches ten.

People are reluctant to marry, we’re told, because they don’t trust the institution.  But the arrangements they make for themselves don’t exactly improve upon it.

How did we get here?  About that, there’s major disagreement.  Among the arguments cited in the Times are the following:

  • Men are “worth less” (not worthless): the decline in men’s wages has made them less reliable and necessary as breadwinners.  Marriage has declined most among those who are most economically marginal.
  • Government policy makes marriage a bad bargain for some, as there are benefits available to the unmarried than aren’t there for the married.
  • Laws permitting “no-fault” divorce send a cultural signal about the relative lack of importance of marriage.

In a recent blog post, my friend Peter Lawler suggests another set of reasons connected with an imprudent extension of some of the implications of the classical liberal individualism that played a prominent role in the American Founding.

The general thought is that idea of marriage between a man and a woman has to be supplanted with the idea of a marriage between autonomous individuals, who are free to choose how to put together their intimate lives. That redefinition fits with the way marriage has been reconfigured, in general, in a Lockean direction over the last few generations. Divorce has been much easier, adultery less stigmatized, and the connection between marriage and children has become progressively more attenuated. We’re more okay than ever with unmarried women having children, and married people not having them.

If we think of ourselves as “autonomous individuals,” not as men and women made for one another and for family life, then our relationships are likely to be more about self-actualization than about anything else.  Because we don’t “focus on the family,” our relationships suffer, and, with them, the children who we bring into this world.

We have taken a relatively long time to get ourselves into this situation, and there is no easy way out.  Public policy has a limited role to play, as (it seems to me) much of our problem is “cultural” or philosophical.  Perhaps we can begin by not regarding as “normal” something that should trouble us all.

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Professions of Faith: A Split Decision?

February 3rd, 2012 by Joseph M. Knippenberg
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We have previously noted in this blog that Christian students have been having “issues” with graduate counseling programs, both here in Georgia (at Augusta State University) and in Michigan (at Eastern Michigan University).  Late last year, the 11th Circuit Court of Appeals in Atlanta held against Jennifer Keeton, who had sued Augusta State.  Last month, the 6th Circuit Court of Appeals reversed the District Court’s summary judgment against Julea Ward, reviving her suit against EMU.

In both cases, conservative Christian students nearing the end of their graduate counseling programs were required to participate in a counseling practicum.  In both cases, the students indicated that they could not counsel gay students in a way that affirmed their sexual orientations.  Keeton was asked to submit to a remediation plan as a condition of remaining in the program and completing the practicum.  Rather than do so, she filed suit.  Enrolled in the practicum, Ward “asked her faculty supervisor either to refer [a gay] client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues.”  After requesting the referral (which was granted), she was subjected to a disciplinary hearing and expelled from the program.

Both women lost at the district court level, which wasn’t all that surprising.  Courts are very deferential to the professional and curricular judgments of university faculty and could hardly challenge the institutional desire to have their counseling programs comply with the American Counseling Association’s Code of Ethics.

But at the appellate level, as I noted, Keeton lost and Ward won.  That’s because the facts of the cases and the issues presented were ultimately somewhat different.  Keeton apparently wished to give voice, in counseling situations, to her moral disapproval of homosexuality, an intention that put her squarely at odds with the ACA’s Code of Ethics.  By contrast, Ward sought to avoid a situation where she would either have to express her moral disapproval or say something she did not believe.

The question, in Ward’s case, is whether her strategy of avoidance would keep her in compliance with the ACA’s Code of Ethics.  University officials asserted that it didn’t.  Ward’s attorneys argued that nothing in the Code ruled out such referrals.  The appellate panel agreed:

What exactly did Ward do wrong in making the referral request? If one thing is clear after three years of classes, it is that Ward is acutely aware of her own values. The point of the referral request was to avoid imposing her values on gay and lesbian clients. And the referral request not only respected the diversity of practicum clients, but it also conveyed her willingness to counsel gay and lesbian clients about other issues—all but relationship issues—an attitude confirmed by her equivalent concern about counseling heterosexual clients about extra-marital sex and adultery in a values-affirming way.

This is not to say that Ward should automatically win her case.  Far from it.  But there are, the court says, facts and circumstances that need to be brought before a jury.  There’s evidence—not  conclusive but suggestive—that EMU faculty behaved badly in their treatment of Ward, inventing or bending policies because of their hostility toward Ward’s point of view.  Rather than upholding the summary judgment of the district court, the appellate panel called for a jury trial so that these matters could be sorted out.

It also explicitly distinguished its holding from that of the 11th Circuit panel in Keeton’s case.

At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter even disagreement between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims….  Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.

The two claimants’ theories of constitutional protection also are miles apart.  Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a “client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client’s behavior.” …. That approach, all agree, violates the ACA code of ethics by imposing a counselor’s values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits. Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor’s values on the client in anything but an even-handed manner. Not so here, as the code of et ics, counseling norms, even the university’s own practices, seem to permit the one thing Ward sought: a referral.

… While Keeton involved Augusta State’s across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today’s case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.

This does not mean that I’m totally satisfied with either or both decisions, let alone with the circumstances that gave rise to these conflicts.  The deeper conflicts between religion and the professions remain.

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Great Supreme Court Victory for Religious Liberty

January 18th, 2012 by Joseph M. Knippenberg
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On Wednesday, January 11th, the Supreme Court announced its unanimous decision in the Hosanna-Tabor case, about which I blogged some months ago.  Finding for the church, the Court upheld the so-called “ministerial exception” to employment discrimination laws that most appellate courts (except for the one in this case) had crafted from the First Amendment.

Writing for the Court, Chief Justice John Roberts concluded that both the establishment and free exercise clauses prohibited governments from telling churches and church-related schools who they should hire and retain as ministers:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment deci­sion. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By impos­ing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.  According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

He rejected arguments made by the Obama Administration and plaintiff Cheryl Perich’s attorneys that the First Amendment protected churches against only certain sorts of employment discrimination claims.  While they asserted that First Amendment associational freedoms protected churches as they did other groups, Roberts insisted that religion was different:

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club…. That result is hard to square with the text of the First Amendment itself, which gives spe­cial solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organiza­tion’s freedom to select its own ministers.

This is a very powerful affirmation of the autonomy of religious groups in the face of the regulatory state.

Justice Roberts also rejected the very crabbed approach taken by the appellate court in determining who counts as a minister.  While he didn’t go as far in his deference to religious organizations’ own claims as did Justice Clarence Thomas in his concurrence, he did contend that the exception was capacious enough to include Cheryl Perich.  In deciding who counts as a minister for the purposes of this exception, a variety of factors have to be taken into account, including (but not limited to) ordination or commissioning and involvement in “conveying the Church’s message and carrying out its mission.”  While there is no strict rule for determining who counts as a minister, there is also room for judicial inquiry, albeit not of the sort undertaken by the appellate court, which simply counted the amount of time Perich spent in religious activities.

It is true that her religious duties consumed only 45 minutes of each work­day, and that the rest of her day was devoted to teaching secular subjects. The EEOC regards that as conclusive, contending that any ministerial exception “should be limited to those employees who perform exclusively reli­gious functions.” We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities.

Churches and other religious organizations are special.  The First Amendment religion clauses extend them unique protections.  The Supreme Court resoundingly affirmed that truth in this case.

Now I wish they would revisit their holding in CLS v. Martinez, where a narrow majority held that the University of California’s Hastings College of Law could require its Christian Legal Society chapter to adhere to its non-discrimination rules in establishing the eligibility for offices in the organization.  Here the words of Justice Samuel Alito in his concurrence seem particularly appropriate:

Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context,“[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express.”

To be sure, there’s a difference between compelling a group to hire or retain a “minister” and conditioning its access to certain privileges on its adherence to certain publicly-established nondiscrimination standards.  CLS chapters remain “free” to choose their leaders any way they wish and make them adhere to any religious standards they wish, but if they do so, they have to accept, in effect, second-class citizenship in the law school setting.

The Roberts Court has been very good for religious liberty.  It could have been even better.

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A Trade of Deception, Part 1

January 10th, 2012 by Toby Tatum
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During the hustle and bustle of the 2011 Christmas season, you may have missed the latest shocking news from the People’s Republic of China: Over 600 smugglers were arrested for trafficking 178 babies across the country. Click here to watch a video report.

Although motives involved in such a wide-scale operation probably vary, it’s likely that this most recent act isn’t much different than a whole host of similar human rights abuses over the past decade. Sadly, this story seems to be the continuation of an abominable trend across the Land of the Rising Sun: Both children and adults are bought, smuggled, and sold like cargo off a merchant ship. Just as recent as July, another batch of nearly 90 minors was rescued from the clutches of 369 child-trafficking gang members (Source).

Two months earlier, a news story out of Shaoyang, a city in China’s Hunan province, revealed that local enforcers of China’s One Child Policy have confiscated at least 20 children over the past decade. Enforcers then sold these children to Chinese adoption centers for $154 per person, and in turn listed “available” children for overseas adoption at the price of $3,000 each (Source).

The China Center of Adoption reports that the largest number of adopted Chinese Children lives in the U.S., so it is likely that the largest number of once-trafficked children also reside in the U.S. (Source). Adopting families may be falsely led to believe they are simply paying “government fees,” when the grim reality bears that they are unknowingly providing the largest contribution of revenue to a government-run, black market-enabled trade of deception.

In fact, in 2005 local enforcers seized the daughter of Yang Libing and Cao Zhimei, a married couple living in a humble mountain village in the Hunan province. The couple was unable to pay the One Child Policy’s “social support compensation” in the amount of 6,000 yuan (nearly $950), so their daughter, around one year old, was taken and offered for adoption (Source). Little Yang Ling now lives in the U.S. (Source).

In 2010, this sort of disreputable behavior took form in a “mom and pop” black market operation led by a Chinese woman and her 38-year-old son (Source). The prevalence of such an injustice may provoke one to question: Why does this abuse continue to occur? Are the economic incentives so great? Clearly, Chinese government policies that show disrespect for human life, individual rights, and the sanctity of the family are helping to drive the supply of “available” children. But we also can’t ignore the role that the demand for adoptable children plays is in encouraging the abuses we see in China.

It is imperative that U.S. citizens are aware of these circumstances when considering an adoption. The choice to adopt is a noble calling, yet adopting couples must be discerning in reviewing the legitimacy of their individual adoption processes. Although China has been highlighted through this exposé, such injustices are present elsewhere as well. Organizations like China Aid and the Laogai Research Foundation work to inform the public of these issues and provide opportunities for concerned citizens to get involved.

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Professions of Faith Revisited

December 22nd, 2011 by Joseph M. Knippenberg
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More than a year ago, Eric and I commented on a couple of cases in which Christian students in state university counseling programs had run afoul of the professional requirements imposed by their departments.

Well, in one of those cases, a three judge panel of the 11th Circuit Court of Appeals has spoken, finding that Augusta State University did not violate Jennifer Keeton’s free speech and free exercise rights when it required that she accept a remediation plan that enhanced her sensitivity to the needs of gay, lesbian, bisexual, transgendered, and questioning (GLBTQ—yes, that’s the acronym people use these days) counselees or face expulsion from her graduate program.

The unanimous opinion and the concurrence by conservative hero William Pryor bear careful examination.  Here’s the first passage worth noting:

As all graduate students in the program, regardless of their personal beliefs, must counsel clients in accordance with the ACA Code of Ethics and ASU’s counseling curriculum, the remediation plan did not single out Keeton for disfavored treatment because of her point of view. All students are taught the ACA’s fundamental principles, including that counselors must support their clients’ welfare, promote their growth, respect their dignity, support their autonomy, and help them pursue their own goals for counseling. Further, ASU’s curriculum requires that all students be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral. As such, ASU’s curriculum and the generally applicable rules of ethical conduct of the profession are not designed to suppress ideas or viewpoints but apply to all regardless of the particular viewpoint the counselor may possess….  Keeton remains free to express disagreement with ASU’s curriculum and the ethical requirements of the ACA, but she cannot block the school’s attempts to ensure that she abides by them if she wishes to participate in the clinical practicum, which involves one-on-one counseling, and graduate from the program.

In other words, the issue is not what she thinks or says in class, but how she is to behave as a professional, when she’s called upon to counsel students.  When it demands that Keeton accept the remediation plan, Augusta State is simply upholding the professional standards of the American Counseling Association.

A second crucial consideration from the Court’s point of view is the fact that when Keeton participates in the counseling practicum—required of all students in the program—she could be perceived as representing and speaking on behalf of the University—just as, presumably, were she to gain employment in a public school setting, she would be speaking on behalf of the school when she acted as a counselor.  In a “school-sponsored expressive activity,” the University is entitled to place limits on the kinds of speech permitted.  What’s more, courts have been and should be careful not to interfere with and second-guess the professional judgments of the educators as they design their curricula.  Connected with this consideration is another:

[W]e find that ASU has a legitimate pedagogical concern in teaching its students to comply with the ACA Code of Ethics. ASU must adopt and follow the ACA Code of Ethics in order to offer an accredited program, and the entire mission of its counseling program is to produce ethical and effective  in accordance with the professional requirements of the ACA.

It is reasonable for the University to wish to offer an accredited program.  The standards it is upholding come from the professional association that does the accrediting.  Those sympathetic with Keeton’s concerns should see that their complaint is really with the ACA and only secondarily with Augusta State.  As I said in my earlier post, the real question here concerns the relationship between the professions and people of faith.

In closing this part of its opinion, the appellate panel reminds us that when the state funds a program, it needn’t fund all possible means of accomplishing a legitimate end:

In Rust v. Sullivan…, the Supreme Court held that “[t]he Government can, without violating the Constitution , selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” The program in Rust sought to promote the establishment and operation of family planning projects….  To this end, it funded entities that engaged in family planning counseling, but prohibited fund recipients from giving patients abortion-related advice….  ASU’s clinical practicum is similar to the program in Rust, as it seeks to promote counseling “activities that it believes to be in the public interest.”…. The defined limits of the clinical practicum require students to provide counseling in accordance with ACA Code of Ethics….

If Keeton’s free speech rights trump the University’s interest in this case, then it’s not clear why the similar rights of Planned Parenthood employees wouldn’t trump government concerns in cases where they are, for example, compelled to speak about alternatives to abortion or to show the patient an ultrasound image of her child.

Judge Pryor’s concurrence emphasizes that while the University is on solid ground when it ties its remediation plan to Keeton’s participation in the counseling practicum, it started off much more shakily, seeming to impose the plan simply because she expressed disfavored viewpoints in classes.

[W]e have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.

As Judge Pryor reminds his brethren (and us), students in public universities are entitled to disagree with the “preferred viewpoints of the university” in classroom and other settings where they are speaking for themselves and not for the institution.  Citing a case in which the Supreme Court upheld the ability of school authorities to censor a student newspaper, Judge Pryor continues:

The decision of the Supreme Court in Hazelwood School District v. Kuhlmeier… is instructive. In Hazelwood, the Supreme Court determined that public schools may regulate school-sponsored speech that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school when the regulation is reasonably related to pedagogical concerns….

Hazelwood does not suggest that Augusta State can discriminate against Keeton’s speech because it will someday confer a degree upon her. Nor does Hazelwood permit a public university to retaliate against student speech whenever it occurs in a classroom. And Hazelwood does not allow retaliation against disfavored speech that occurs outside the classroom.

This is a strong reminder that the professions and the public universities that uphold and enforce their “professional viewpoints” still have to answer to First Amendment concerns.  We all gain when people are free in academic settings to speak their minds.  To be sure, we have to remember that there’s a difference between an academic setting and a professional or clinical setting.  This is the lesson that—at their best—the Augusta State faculty were trying to teach Jennifer Keeton.  It’s one that they should also remember in their conduct as teachers and scholars.

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I Have a Bone to Pick with Dino Dan

December 15th, 2011 by Eric Cochling
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Before I rip into Dino Dan, a show on Nick Jr. about an elementary- aged paleontologist with a terrific imagination, some disclaimers are in order.

First, my five year old loves the show and I enjoy watching it with him. The dinosaurs that come to life through Dan’s imagination are life-like and impressive. Second, my son has learned a lot about dinosaurs by watching the show, including the names of dozens of dinosaurs that I can’t begin to pronounce.

The fact is that Dan, the title character in the show, is a terrific model of manners, intelligence, and curiosity. He shows great respect for his mom and his teachers and strives to treat other children well; all characteristics I want for my son. Outside of some minor conflicts with his annoying little brother, Trek, Dan is a great role model for any child.

Given what I think of the show, I was saddened by the realization (after watching more than a few episodes, I might add) that Dino Dan is perpetuating one of the most destructive myths in western culture. On full display in each episode is the myth that fathers are unnecessary when it comes to raising children. The fact that Dan apparently has a very busy paleontologist father is little consolation since he is virtually absent from the child’s life.

Granted, the Canadian culture that produces Dino Dan must deal with the reality that in provinces like Quebec, most kids are being born to single mothers. Given that fact and to cater to the politically correct, maybe showing that a single mom can raise a well-adjusted child is warranted. However, my objection to the show’s portrayal of Dan’s fatherless home is not based on the desire to have single-parent homes unrepresented in the world of children’s television.

My primary objection to Dino Dan is in how thoroughly the show’s creators have scrubbed it of any meaningful reference to Dan’s globe-trotting father. And they’ve gone about it in a way that, I’m sure, they consider balanced for the 21st Century.

In place of his father, the writers of the show have given Dan a mother with (surprisingly) stereotypical masculine traits. She’s a police officer, a martial arts expert, and a disciplinarian. What’s conveyed is the message that all it really takes to effectively replace a father is to take a mom and give her a black belt and a gun.

Unfortunately for the creators of Dino Dan, the sociological evidence says otherwise. Social scientists are beginning to confirm what we knew from experience all along: fathers are just as important to raising well-adjusted, emotionally secure, and happy children as are mothers. And they matter to boys and girls in equally important, but different, ways.

For both, self-worth and confidence are largely learned at the hands of fathers. For girls, good fathers bestow the knowledge that they are seen as beautiful and loved unconditionally by at least one man on earth – with no strings attached. For boys, good fathers provide an example of how a man ought to care for his family and community, and – importantly – how men should treat the women in their lives.

Strong mothers, like Dan’s, can do a lot to mitigate the loss or the absence of a father – I know because my mother did a good job of that for me – but they can never fully replace the father who isn’t there. And it doesn’t help for shows like Dino Dan to perpetuate the myth that they can. Just as many TV shows and advertising wrongfully portray men (and especially fathers) as alternatively clueless and bungling, Dino Dan wrongfully promotes the view that fathers simply don’t matter to a child’s well-being.

My hope is that in some future edition of Dino Dan, the importance of fathers will be acknowledged – not just because fathers do matter but because I fear that there are children seeing the show who may be learning that father absence is an acceptable norm – and an inconsequential one at that.

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Religious Freedom and the Regulatory State Yet Again

December 1st, 2011 by Joseph M. Knippenberg
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About six weeks ago, I posted on this topic, referring then to a case the Supreme Court had taken up.  Then the issue was whether and to what extent government employment regulations governed the relationship between churches and other faith-based organizations and their employees.  Now, the issue—taken up in an administrative rather than a judicial context—is what sort of health insurance coverage religious employers have to offer.  The larger question remains, as always, how a religious organization can remain faithful to its mission and its understanding of its responsibilities when government is assuming an ever greater responsibility for governing varying aspects of our lives.

You may have heard about the so-called “contraceptive mandate,” which follows from the Affordable Care Act (Obamacare) and requires  employers that provide health insurance for their employees to offer a range of contraceptive programs, including some abortifacient drugs.   I discussed it here: there is a very limited exemption  for some religious employers, but it doesn’t extend to organizations (like the Georgia Family Council, the Salvation Army, or a denominationally-sponsored hospital) that engage in significant public outreach or service.

My friend Rick Garnett, a law professor at Notre Dame, has authored an op-ed that I wish could be the last word on the subject.  Herewith a few excerpts:

[G]overnments hoping to make good on Madison’s promise will sometimes accommodate religious believers and groups by exempting them from rules and requirements. This sounds like special treatment for religion, and indeed it is. Our country’s founders believed that such compromises are sometimes necessary and justified, even when the rules in question are popular or seem sensible, because religious freedom is both fundamental and vulnerable….

A more generous exemption for religious employers — indeed, the elimination of the mandate itself — would not hamstring the aims of the new health care law because nearly all employer-based insurance plans already cover prescription contraceptives. The belief that drug-induced abortion is wrong and should not be publicly subsidized is deeply and widely held, by people on all sides of the health care debate. This is not an instance in which religious believers are asking the community to compromise a core shared value, to impose harms on third parties, or to endorse an offensive or dangerous view.

It is easy to respect and protect religious liberty if everyone agrees or if governments do very little. The American situation, of course, is different. When more active governments, like ours, direct a religiously diverse citizenry, like ours, there is going to be tension and conflict, trade-offs and compromise.

Given our deep-rooted commitment to religious freedom, our goal should be to resolve this conflict in a way that does not make the radical privatization of faith the price of acting consistently with that faith.

Amen, brother, amen.  If we had a small government that took on very few responsibilities, religion could well prosper in the space left open for voluntary community activity.  But, as I said above, the farther government reaches, the more it potentially trenches on the freedom of religious groups to be faithful to their missions.  In our day and age, religious freedom requires accommodation, which looks like special treatment, but really is just governmental self-restraint.  Even if it doesn’t require this accommodation or self-restrain, the First Amendment certainly permits it.  And we voters and supporters of religious organizations and religious freedom should insist upon it.

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