Is calling Buddhism «stupid» unconstitutional?


An early version of this story referred to Sabine Parish as Sabish Parish. Monochromatic Outlook regrets the error.

There has been a little controversy over the case of Lane v Sabine Parish and the question of whether a teacher telling a kid that his family’s religion is «stupid» is unconstitutional. One side says the Constitution provides «separation of church and state» (words which do not appear in the Constitution) and the other side says that the idea of such separation has been taken farther than the Founders intended.

I’m not a lawyer but I do enjoy opining on matters of the reach of the Federal Government so I’ll take a stab at that. The First Amendment says, «Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….» I include the second clause to acknowledge the point of view that the teacher was freely exercising her religion. That’s valid on its face but there are other factors that come to play:

  1. She is a state employee (or perhaps municipal or county; not sure how it works in Louisiana.) By itself, this does not rise to «Congress [making a] law».

  2. She was acting in her role as an agent of the government, and (I’ll get to this) perhaps as an agent of multiple levels of the government. But at minimum as an agent and representative of the municipal government. This also doesn’t seem to be about Congress making any laws.

  3. The Fourteenth Amendment makes the Constitution protection of rights applicable to the states and increasingly to municipalities as well. Whether you agree with that reading of the Fourteenth or not, there is considerable judicial precedent for that principle. Of course, neither Congress, nor the government, nor the municipality have enacted a law respecting an establishment of religion or prohibiting the free exercise thereof. Bear with me.

  4. Congress has enacted laws which give money and mandate standards to schools in the states. Therefore, this teacher, whether a state or municipal employee, is acting as a paid agent of a law enacted by Congress. Since Congress may not enact laws respecting an establishment of religion or prohibiting the free expression thereof, Congress may not, under the Constitution, pay schools to promote or discourage any establishment of religion.

  5. Now the only thing left to establish is whether the teacher promoted or prohibited the exercise of religion. Since the answer on the test was presumably correct within the framework of the child’s family’s religion (I haven’t seen the actual answer in the news reports) marking it incorrect for not answering «The Lord» was itself punitive. Additionally, ridiculing the child’s family’s religion was promoting one religion over another, which is behavior that Congress enacted a law to pay for her to do. Even if Congress was not pulling the strings, if the municipality takes state funds (and probably even if it did not) agents of the government employed by the mandate of legislation may not engage in that kind of behavior.

  6. I’ll admit that calling an individual teacher’s actions the actions of an agent of the government is a bit of a stretch. However, the school and the school district is responsible for the behavior of the teacher meeting a set of standards. That set of policies (the power to set being granted by the state) must not allow the promotion or prohibition of any exercise of religion. When the parents brought the complaint to the school and the school district, the school and the district each had a responsibility to instruct the teacher that her behavior was out of line with policy. Not only did they fail to do so, they told the parents that it was the school’s policy to promote Christianity and that if they didn’t like it they could leave. Whether such a policy was written or not, this is a clear-cut case of legislatively-sponsored promotion of one establishment of religion and prohibition of the free expression of another.

All that said, «unconstitutional» is a meaningless word without specific context. An individual’s actions cannot be constitutional or unconstitutional. The Constitution addresses not what people can and cannot do, but what the governments of the United States can and cannot do. It’s sort of a weasel phrase to say that what someone did was unconstitutional.

However, this case is about the policy of the Sabine Parish Board of Education. A policy (again, whether written or not) of a legislatively-mandated state- and federally-funded institution should be evaluated on the basis of whether those policies violate constitutional protections. It would be fair to call the Board of Education’s policies and actions unconstitutional.

There is one further twist: despite the ACLU’s declaration of victory, the decision by Judge Foote is not strictly a ruling in favor of the plaintiffs. It is a binding consent decree that was agreed to by both the Board of Education and the plaintiffs. Essentially, Judge Foote signed off on a settlement between the two parties. The Board of Education admitted no wrongdoing but agreed to the terms of the consent decree in exchange for the case not being taken any further.

Perhaps that’s a technicality. Judge Foote may very well have provided instructions about what would or would not be acceptable. Certainly the parties’ negotiations included constitutional arguments. The consent decree does in fact mention several times that the policies of the school must be in accordance with the Constitution. Even if there were no explicit instructions, the likelihood that the Board of Education would lose the case on constitutional grounds came into play. But in a strict sense, there is no way that an agreement between parties to settle a lawsuit on their own negotiated terms can possibly be seen as an overreach of the power of the state or Federal Governments. They both agreed to the consent decree, the judge just signed off on their agreement.

The consent decree does instruct the Clerk to enter judgment «in favor of the Plaintiffs», but I’ll reiterate: the defendants agreed to have judgment entered in favor of the plaintiffs. It also orders the Board of Education to pay the plaintiffs. This does not seem unreasonable. The plaintiffs each receive one dollar for nominal damages, one of the plaintiffs will be paid $4,000 to compensate for the costs associated with transporting the child to another school in another district. The consent decree instructs the Board to pay for the child’s busing to the alternate school until the child graduates high school. Finally, the Board was instructed to pay the plaintiffs’ attorneys’ fees in the amount of $40,000. $44,002 (or $44,003; it’s not clear whether it’s one dollar per named plaintiff or one dollar per child) makes the teacher’s and the Board’s inappropriate actions a set of costly mistakes, but it doesn’t make the plaintiffs wealthy; it merely compensates them for the expenses incurred as a result of the Board’s actions.1

While this case balances the teacher’s right to exercise her religious beliefs against the child’s right not to be prohibited from exercising his religious beliefs, the child’s right here must win out. The teacher expressed her religious beliefs and suppressed the child’s beliefs in her role as an employee of the government. If she had made these comments off of the school campus and outside her capacity as the child’s teacher, it might be a different story. The question is not what this individual person may do, but what the various governments within These United States may do.

  1. Paying for transportation to an alternate school may seem a bit out there, but the Board of Education told that parent that if she didn’t like their policy her only recourse was to take her child to a different school. They stepped into that one. ↩︎