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.