Today I want to mention an article in the 2008 William & Mary Bill of Rights Journal (my undergrad alma mater!) about the constitutionality and legality of teaching intelligent design in university science classes (reference and free download below).
The author is Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion at Michigan State University, so he certainly has the professional credentials to weigh in on this debate. Of course that doesn’t mean that you will agree with him; apparently there are those who think that the First Amendment strictures against government sponsorship of religion do not apply—or at least don’t trump “academic freedom”—in public universities.
This is the only article I know of that deals with this issue, and so is relevant to the case of Eric Hedin, who proselytizes Christianity in an undergraduate science class at Ball State University.
Ravitch reaches three conclusions.
1. Intelligent design (ID) is not science and therefore “universities may. . . preclude professors from teaching it in university science departments”.
Ravitch goes through the Lemon test and the Kitzmiller case in Dover to conclude, as did Judge Jones in the latter case, that intelligent design is not science, but a religiously motivated theory with no credible evidence behind it. Ravitch then concludes, after reviewing relevant case law, that:
There is a significant amount of case law holding that public university officials may insist that professors teach within the stated curriculum. It is equally clear that within the curriculum, professors are accorded a great deal of academic freedom; although there are some limitations.”° Some of these cases involve professors inserting their religious views into courses unrelated to religion. In the end, courts have held that courses at public universities are so connected with the educational function of these institutions that university officials have a right to enforce “legitimate pedagogical interests” as to the general substance of courses. These interests either outweigh any claims of academic freedom asserted by professors °9 or are said to be invalid when it comes to teaching (at least in the core curriculum).
As for those who assert that this violates “academic freedom,” Ravitch responds:
At one level this is a bit disturbing to academics like myself. I had thought that academic freedom was quite broad in the classroom both as a matter of law and policy, but reading the cases, it seemed more and more like this is true as a matter of policy, but not necessarily as a matter of law. Yet, the ascendance of ID theory suggests there are reasons why the courts have ruled as they have. Most of the cases do not involve garden variety teaching disputes.” They more frequently involve either overt sexualized or profane statements in courses that do not touch on sex or profanity in any way, or they involve the insertion of material that may run contrary to the focus of the courses involved.’
Ravitch discusses the Bishop v. Aronov case decided by a federal court: the U.S. Court of Appeals for the Eleventh Circuit. Bishop was a professor at the University of Alabama who taught exercise physiology, and constantly proselytized about Jesus in his classes. He also organized an after-class event, “Evidences of God in Human Physiology,” which was optional.
Bishop was told to knock it off, but sued the university. He lost. As Ravitch notes,
The court held that a university classroom is not a public forum for speech. Thus, the university has the right to determine what substance is appropriate in the curricular context, so long as it has legitimate pedagogical interests for doing so. This must be done through case-by-case analysis. In Bishop, the university had valid concerns regarding the relevance of the professor’s religious statements to a course in exercise physiology. Bishop had the freedom to hold events on his views of G-d’s role [JAC: the truncated spelling suggests that Ravitch is an orthodox or conservative Jew] in human physiology on campus so long as those events were not connected to his courses. Thus, Bishop was not denied the freedom to discuss his religious convictions, he was only denied the ability to outwardly do so in the manner that he had in his exercise physiology course. The key issue was the department, college, and university’s right to control curriculum based on legitimate pedagogical interests.’ In this case, those interests included concerns about the pedagogical effects of students feeling religiously coerced in a basic physiology course.’ The notion of legitimate pedagogical interests was taken from a line of cases involving secondary schools.’
Ravitch also discusses legal cases supporting the idea that a university “may control a private individual’s speech where it is done in a manner which makes it, in reality, university speech. . .” As one judge ruled in a university case:
“While a student’s expression can be more readily identified as a thing independent of the school, a teacher’s speech can be taken as directly and deliberately representative of the school. Hence, where the in-class speech of a teacher is concerned, the school has an interest not only in preventing interference with the day-to-day operation of its classrooms as in Tinker, but also in scrutinizing expressions that ‘the public might reasonably perceive to bear [its] imprimatur'”.
2. Teaching ID in public universities and colleges is a likely violation of the Establishment Clause. That is, it can be prohibited an an unwarranted incursion of religion into public schools. This is directly relevant to the Hedin case:
The primary Establishment Clause concern regarding ID in science departments at public universities involves teaching ID. Support for research may also be an issue, but as will be seen, the teaching of ID poses a far more significant problem under the Establishment Clause. The Bishop court relied, in part, on the university’s justified fear of religious endorsement and coercion when it upheld the university’s right to preclude Professor Bishop from teaching a religious approach in his exercise physiology class. An important implication was that this was a general science class and not an upper level seminar and that it was a science class, as opposed to a class in religion or philosophy.
. . . When one registers for a course in the science curriculum, one does not expect to have religious positions on creation thrust upon oneself. Once one is registered for the course, it may be hard to withdraw for any number of reasons. If the professor imposes his or her religious views on the scientific subject matter of the course or, for religious reasons, skews his or her teaching so as to create a false impression that a generally scientific approach is invalid, there are clear problems of endorsement and coercion.
So much for the fact that Hedin’s course wasn’t required, and is therefore exempt from religious speech prohibitions. (It came close to being required, though, since there are very few Honors classes that meet the science requirement, and the Jesus proselytizing apparently didn’t begin until well after the class started).
When one registers for a course in the science curriculum, one does not expect to have religious positions on creation thrust upon oneself. Once one is registered for the course, it may be hard to withdraw for any number of reasons. If the professor imposes his or her religious views on the scientific subject matter of the course or, for religious reasons, skews his or her teaching so as to create a false impression that a generally scientific approach is invalid, there are clear problems of endorsement and coercion.
What about university professors not being subject to the Constitution because they’re not “agents of the state”? I disagree with that, and so does Ravitch. They are state employees performing state-specified duties, and if they promote Christianity, like Hedin did, they’re violating several prongs of the Lemon Test.
As the Edwards, Bishop, and Kitzmiller courts all note, the effect of teaching religious theories of creation in a secular science classroom is to promote or endorse religion. Using the podium of a state university science department to promote a religious theory of origins that has been rejected by the broader scientific community is an endorsement of religion. As the Bishop court explained, it could make students feel that they must “take it” or have their grades affected, and as the Kitzmiller court explained, it can create a false sense of scientific views on central issues in students who do not have a strong grounding in biology, chemistry, etc.
Ravitch concludes that “the Establishment Clause makes the public university’s role in limiting the teaching of ID in science courses mandatory. . there are no free speech or free exercise rights involved because there is no unlimited right to teach whatever one wants regardless of curricular needs or merit.”
3. Denying tenure to someone who engages in ID research is justified, since ID is not valid science. On the other hand, revoking someone’s tenure if he/she decides to engage in post-tenure ID research is more problematic.
I agree with this: the utmost caution must be exercised when considering revoking tenure since, after all, many professors engage in either no research or off-the-wall research after getting tenure, and they don’t get fired. So long as one doesn’t teach ID in class, there would be little justification for removing tenure from somebody who starts dabbling in creationism. And, indeed, Lehigh University has not revoked the tenure of Michael Behe, one of ID’s prime exponents.
The onus, then, is on those who claim that Hedin can teach what he wants, including proselytizing for Christianity, to show that Ravitch’s legal analysis is dead wrong. Banging on about “academic freedom” is not sufficient.
I have reviewed the guidelines of the American Association of University Professors (AAUP) on “academic freedom”, and it says precious little about whether a professor has freedom in a university classroom to either teach creationism or engage in religious proselytizing. The issue apparently hasn’t been adjudicated. The original AAUP guidelines (the famous “1940 statement”) say this:
- Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
- Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
- College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
Note the difference in “full freedom” for research and publication and “freedom” for discussing things in classroom, which is circumscribed by “teaching controversial matter which has no relation to their subject” (read, “Jesus”).
Finally, a more recent analysis of academic freedom prepared in 2002 by Donna R. Euben, the AAUP’s legal counsel, notes this:
D. Some Future Challenges
More clearly defining the relationship and tensions between individual and institutional academic freedom under the First Amendment will be a challenge for AAUP, colleges and universities, and courts. Future cases may provide opportunities to refine that relationship through exploration of:
The difference in protections under the First Amendment right of academic freedom between K-12 and postsecondary schools [colleges and universities]; and
The scope of institutional academic freedom as between private and public sector institutions
Both of these challenges involve the Hedin case, which makes it ripe for adjudication. I hope it doesn’t come to that, but it is time for the courts to clarify whether state employees who teach at U.S. universities must still abide by the Constitution. I still can’t see a good argument to the contrary.
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Frank S. Ravitch, 2008 Intelligent Design in Public University Science Departments: Academic Freedom or Establishment of Religion, 16 Wm. & Mary Bill Rts. J. 1061 (2008), http://scholarship.law.wm.edu/wmborj/vol16/iss4/6
Thought you might want to see it
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Fwded to Son of Hempenstein, who is studying for his bar exam.
Jerry, once again I don’t think that anyone is saying that academic freedom legally trumps the First Amendment. No one has said that the university couldn’t, if it wanted, punish Hedin for his actions, such as preventing him from teaching ID, or denying him tenure if he does.
It seems that the only point that is really in contention is the second, whether teaching ID is actually an Establishment Clause violation. And it’s here that a paucity of case law is somewhat concerning.
I disagree. People have said that the First Amendment doesn’t apply here because 1. it’s a university, and 2. the course is optional. They say that the issue of academic freedom is paramount. It obviously, then trumps the First Amendment because the First Amendment doesn’t apply.
Moreover, several commenters and bloggers have said that if Hedin wants to teach this marginal course, the university should basically leave him alone to teach it. They can marginalize him by, say, glaring at him at faculty meetings, but shouldn’t prohibit him from teaching.
Let me just refer you to Larry Moran’s statement, which says that Hedin’s university should let him teach whatever he wants in that class. That is an explicit statement that they should NOT try, or want, to prohibit him from teaching that course.
Perhaps I’m misunderstanding you, but if the First Amendment doesn’t apply, then the issue of academic freedom is essentially irrelevant. Or, at the very least, the issue then boils down to employment law (what a university can and can’t do to its teaching staff). In other words, “academic freedom” is not doing any legal work in the argument. (By analogy, one wouldn’t say that in this case academic freedom “trumps” food safety laws because the latter don’t apply here.)
In both cases, should is the operative word. I don’t think that anyone has said that it would be illegal for the university to prevent Hedin from teaching ID, just that the tradition/principle of academic freedom means that they shouldn’t. But that’s not a legal argument — it’s an argument about academic culture and tradition.
I think you missed the entirety of the argument:
People have said that the First Amendment doesn’t apply here because 1. it’s a university, and 2. the course is optional.
People say all kinds of crap. Doesn’t make it true.
The bottom-line is, and will always remain, the First Amendment doesn’t go away because you say ‘academic freedom.’ You can make it go away by becoming a private institution with no government entanglements. But public educational institutions must obey the Constitution because they are part of the face of government and this is, in fact, well-settled law despite the claims of many.
And since this is a thread about PUBLIC UNIVERSITIES in the United States, First Amendment considerations MUST ALWAYS APPLY.
I think you missed the entirety of my argument, because my point was that no one is actually saying that. No one is claiming that academic freedom legally trumps the US Constitution. They are instead saying (rightly or wrongly) that the Establishment Clause doesn’t apply in this case, and therefore it should be governed by the principle of academic freedom.
We can discuss whether it’s true that the First Amendment applies here, but I think it’s important not to mischaracterize the actual arguments being made.
I don’t see how. My observation of US case law is that it flip-flops between outcomes, and nothing is supposed to stand forever. Which seems intuitively correct, as society, law interpretations and laws changes over time.
Seeing that this article is 5 years old _and_ the first such article, it should be enough review of existing case law. Unless there is a flip-flop, it is crystal clear.
Or in other words, there is no more concern than usual when you have the earlier case law with you.
I am happy to say that during my time at Pepperdine University, several students were pressing the Natural Science Division, and the biology faculty, to sponsor Stephen Meyer to present at a student convocation, and the Division unanimously rejected the proposition. The faculty rightly determined that sponsoring such an event would give the imprimatur that ID is science which it obviously is not and never will be. Meyer did come and made the inaccurate and outrageous claim that we tried to block his presentation, to which I responded to the crowd for the record that that was simply a lie – and I bit my tongue not to continue to add that much of what he had said was similarly fallacious.
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I think it’s funny how some of the flying baboon bloggers (even within the atheist movement) were so insistent on Free Speech and Academic Freedom and how they pontificated on the subject. All without understanding that Academic Freedom isn’t some holy thing (like a Church Dogma) that can be used to violate the Constitution, the law or commit academic malpractice.
Academic Freedom ends when you start screwing over your students by not teaching them the course objectives and/or start to introduce your weird/religious/unsupported-contrarian positions into it without addressing the issue that they are, in fact, non-standard, fringe beliefs.
For example, if Peter Duesberg was teaching a biology course at Berkeley and started teaching that HIV/AIDS is not caused by a virus, but instead was caused by drugs… I think Berkeley would probably be within its rights to fire him. OTOH, if he only mentioned his views were an insignificant minority and not widely regarded as factual, I think he’d be ok.
In the first, he’s committing an active fraud on his students. In the second, he’s pointing out scientists disagree even in close to uniform consensus.
As maybe one of the flying babboon posters, I’ll say that IMO (i) they absolutely would be in their rights to discipline him, (ii) the Department or University bringing the hammer down on Hedin is the best resolution to this situation, and (iii) while I can’t speak for everyone, if you think all the contrarians object to this, you may not be understanding our objections to Jerry’s point.
“There is a significant amount of case law holding that public university officials may insist that professors teach within the stated curriculum.”
This is a sticking point at Ball State because the leadership of the department and the leadership of the university have still not acknowledged that there is a problem. So finally they are investigating. Let’s see how they respond.
It is great to finally have real legal data brought to bear on the varied opinions in this case.
I have a different understanding of the word ‘data’ than you.
Agree mostly with 1&3. In my mind, the quotes you include are somewhat inconsistnet with your bolded conclusion for point 2. For example, here’s what he says:
This really undermines the claim that it’s unconstitutional/violates the 1st amendment. A 1st amendment argument would imply that ID creationism is illegal in every University class, no matter the department, no matter the level. The argument “its a constitutional violation to teach this…unless it was in an upper level philosophy class” IMO just doesn’t work. So if he’s going to say that its okay in upper-level philosophy, he can’t be saying the subject matter itself is unconstitutional to teach.
And again [My bold.]:
Now, the first part of that statement seems to make a very similar argument to what I’ve been saying: teaching religious materials that does not generally fall into the curriculum the school wants taught is false advertising/breach of contract.
I also agree with that last bit, because he seems to be saying that the professor has no free speech or free exercise to promote his religion in the class. IOW, it is not a 1st amendment violation for the University to prevent him from doing so. I agree.
But all of this is very, very different from saying that teaching Creationism in a public university classroom is itself a violation of the 1st amendment. Sorry Jerry, I don’t see in these excerpts any sort of blanket endorsement for that preferred conclusion of yours.
Re your last paragraph, then: pray tell me why First Amendment considerations apply to teaching creationism in a public high school but DO NOT APPLY in a public university. What is the relevant difference that suddenly nullifies the First Amendment?
Because HS teachers are acting as direct voices of the state in ways professors are not.
1. The state determines HS class curriculum, while it does not set Uni course curriclum. So the content of a HS class is ‘coming from the state’ in a way the content of a Uni course is not.
2. The state decides on HS textbook use, even to the point of insisting authors change what they write. They don’t set Uni textbook use. So, again, Uni course content is not ‘coming from the state’ in the same way.
3. Uni policy is very different from HS policy in terms of latitude given. Because of the policy differences, everyone involved – state officials*, Uni leadership, professors, and students – do not perceive that what a professor says is the state’s official opinion.
4. Historically and quite aside from any formal policy, Uni professors are perceived as not speaking for the state. As a group, you all in fact fight for this recognition as independent scholars. Well, hoist by your own petard: when you fight and are successful at showing the public that you aren’t government agents, then guess what? You must live with the consequences of not being seen by the public as government agents. You can’t simply switch back and forth – claiming you’re independent when it suits you, but claiming another professor isn’t indepnedent when he says something you don’t like.
*With, ironically, the exception of some state senators and governors that you oppose, Jerry. Its the conservative politicians that want to hire and fire Uni professors based on what they say that are, ironically, following your position on this to its logical conclusion: if Uni professors are mouthpieces for the state, then the state should be able to fire them for presenting non-state approved positions in classes.
Additional considerations are that university students a) have far greater personal control over what courses they do and don’t take, and b) what universities they do and don’t go to (including universities outside of the US). Most high school students are stuck taking the courses specified by the curriculum, and are limited as to what public HS they are permitted to attend.
I don’t know what high school you went to but the high school I went to had elective courses. In fact, although 1 or 2 credits in science instruction were required all were selected by preference of the student, thus elective in the same way as is being presented at Ball State.
The high school student’s family has almost the same type of choice in selecting a school as the university student has, they can move so that a different school is convenient to their location. Additionally, although I think there was some official approval involved, there were students from my high school boundaries that went to other high schools and the opposite was the case as well.
Even if the opposing arguments were valid, and I don’t think they should be, it is wrong to present Intelligent Design for credit as a science elective. Intelligent Design is not science.
Jerry’s statements regarding the opposing view points are also correct, as what he has done is applied a process of elimination to construe what those statements imply. The comments opposing Jerry’s position remind me of the christians saying that they make no statement regarding who their designer is – well duh!
As a former employee for the state of Illinois universities administrative data center, I can tell you that all state employees are government agents. There are a whole host of activities that you can do outside of work that you cannot do while at work, including campaigning and proselytizing. If you wish to preach on your own time, that is fine, but you cannot use government resources including buildings, materials and personnel. The only argument I’ve seen presented is that university professors are somehow exempt and I don’t understand why that would be the case.
That matches my understanding as well. As an employee at a state university, I have been briefed several times in meetings by HR or legal folks on limits on what we can do on our own time (as private citizens) and what we can do on university time/with university equipment.
I don’t understand how you reached that interpretation. I, of course, could be the one off base but your interpretation does not seem to follow at all.
That seems to be an accurate interpretation to me as well. But . . .,
. . . this does not seem to follow at all. Particularly when coming just after he wrote that the Establishment Clause makes it mandatory for the university to limit the teaching of ID in science courses.
I have no idea who’s opinions of the legal aspects of this issue are, or will turn out to be, the most accurate, but your interpretation of the material you quoted does not seem accurate. I must be missing something.
Boy, I screwed that up. I do agree that, . . .
. . . is also an accurate interpretation.
What I meant to say is that your interpretation that the quoted material supports your position that it is not unconstitutional to teach ID in a public university science course does not seem to be accurate because, . . .(my 2nd to last para above).
Re: “I don’t understand how you reached that interpretation.”
Because whether its a science course or not wouldn’t matter if the subject matter itself was unconstitutional to teach. Ravitch mentions over and over again that its illegal in a science course. So it must not merely be a subject matter issue for him, it must have to do with context, i.e., mismatch between subject matter and student or administration expectations of what will be taught.
Re: “this does not seem to follow at all.”
I think it does. Specifically, I think ‘the university is legally allowed discipline him for teaching creationism in a science course’ follows directly from Ravitch’s “there is no unlimited right to teach whatever one wants…”
You may have missed my correction to my 1st response in which I note that I agree with what you conclude in your final para here. Without reading my correction you will not be able to understand what I was trying to say at all.
In any case, I think I see at least one of the disconnects between us. Who is arguing that teaching ID is unconstitutional, period? I wouldn’t be surprised if someone has argued that before, but I have never heard anyone argue that position. It is very much most typically argued as ID can’t be taught “as science” or “in a science class.” This point does not seem to be in contention between those leaning towards Jerry’s position and those leaning towards your position.
I did miss your correction. Sorry, I started my response, walked away, and then came back and finished after you re-posted.
For any state-funded school, be it HS or University, Jerry is. As far as I can tell, he sees teaching creationism in a public school as a violation of the 1st amendment of the US and thus illegal no matter what the school, the class, etc.
If by ‘its unconstitutional,’ folks like JAC and you are saying its illegal to teach as science in a science class, but perfectly legal to teach in, say, an upper-level philosophy class appropriately titled something like “Intelligent Design Creationism: history and theory,” then we are a lot closer in opinion than you think. At that point, I’d have to say that we pretty much agree on application of law and are just arguing about terms.
I don’t think that is accurate. Jerry has argued that the establishment clause applies to the public university setting the same as it does in other public settings. Granted, he may be wrong about that. There does not seem to be any pattern of clear consistent precedents for this in a university setting yet, so I think this issue is far from clear in the legal sense.
However, Jerry has explained what he thinks that means more than once and it seems clear that he means something like, “ID can not be presented as an accurate description of the world because it has already been determined, in the legal sense, to be religious belief. Teaching it in a descriptive or comparative religious course would be okay.” Not that teaching ID is unconstitutional, period, no exceptions.
This was the most tortured argument I have ever seen, it is literary creeping over the page. Ravitch was discussing ID. Isn’t the idea of designers/designer gods/gods a legitimate matter under philosophy?
It is when it is applied to science it is an outright “religious approach”.
Though if you want to say that this implies philosophy is tantamount to theology and/or religion, you will get no argument from me. Perhaps it is time to strip it from university study. But that is another discussion, I think.
Yes agree – if it were a philosophy course it could explore ID as a creation world view. Yeah, people who promote and believe in ID wouldn’t like it, but that’s how ID should be studied – more like a cultural phenomenon. Similar to taking a philosophy course on religious faith and atheism.
As a science, it is just wrong. It should not be taught as science period.
The practical effect of your approach, Jerry, will not be to keep students from hearing about ID, but simply to make ID a forbidden fruit — an idea too controversial for the classroom.
And we know how college students respond to forbidden fruit.
To the degree that evolutionary theory enjoys the imprimatur of the government, the theory suffers in terms of its acceptance by the public.
Ever wonder why Christianity died in Scandinavian countries? Look at the history of state-supported religion, for instance, in Sweden.
There is little advantage to evolution in being The Officially Endorsed Theory of Where We Came From, and many detriments.
Sorry, but the Discovery Institute’s own policy, so I gather, says that ID shouldn’t be taught in schools. Do you dissent from that?
At any rate, you’re kidding me about “forbidden fruit”. I don’t think students will be any more eager to seek out ID because it can’t be taught then they’d seek out flat-earth theory.
Finally, don’t blame me for forbidding ID to be taught in lower-level schools; blame the courts.
Evolution is the ACCEPTED (not officially endorsed) theory of origins because there is evidence for it. We don’t teach flat earth theory for the same reason that we don’t teach ID or the Christian Science theory of disease: NO EVIDENCE.
Finally, Paul, since you have a religiously based theory of ID, before you can post here again you should briefly summarize the evidence for a. the existence of God and, b. the existence of a very young earth, which you believe in.
I guess the “old earth” theory is an Officially ENdorsed Theory of Geology, and forbidding kids to learn that the earth is 10,000 years old will make them oh so curious to go find out the (lack of) evidence.
Anyway, let’s hear your evidence for God and a young earth.
Mike Klymkowsky teaches/taught a course called Creation and Evolution at CU Boulder’s Department of Molecular, Cellular and Developmental Biology and it is a great demonstration that there is no evidence for creationism, including ID, and overwhelming evidence for evolution. However, I personally think that such courses do not belong in the sciences but rather in the religion or philosophy departments.
Then Hedin better include the forbidden fruit of various creation stories other than the Christian one (ID=Creationism) in his course to protect his students from such temptation.
The forbidden fruit idea is speculative and as equally misguided as those that want to see this course taught on the basis of academic freedom siting a slippery slope of government mandated curricula.
If I were a student, I would want to be taught scientific truth not bogus creation soaked claims and this is what needs to be fought for.
How can ID be “forbidden fruit” when it is readily available in Sunday schools and the church venues which DI speakers frequent (That is, when they are not insisting that ID has nothing to do with religion)?
As a swede and a rational, thinking being I have serious problems with this:
Correlation isn’t causation. And we can test that by looking at the history of remaining european state-supported religion, say UK.
The general well-tested theory of religion is Gregory Paul’s (see Edge -06). And it shows that the strongest correlation (again, not causation) is between religiosity and degree of dysfunctionality of societies.
The scandinavian nations happens to score high on societal functionality. Mostly democracy, free markets and social medicine, all leading up to social security as per Rosling’s statistics.
So of course these nations score low on all religion. Only an IDiot can reveal his concern about christianism especially, because that is what the non-think tank Discovery Institute is all about.
*Also, christianism cults died 2-3 times. The first time catholicism got kicked out as state religion with too much secular power, the second time protestantism was bled to a coma because few if any needed it in secure society, and the third time it was euthanized as a comatose state religion.
And, I should add, since Coyne has published a paper on this (and this theory), I think you are rude to pontificate.
What science have you done on the subject of religiosity, by the way? It can’t be much, since you aren’t aware of the well tested theories here.
Evolutionary theory enjoys the imprimatur of science. ID enjoys the legal imprimatur of non-science.
I’m glad that Prof. Ravitch’s paper was linked and highlighted here today. I linked to this paper about a month ago in a comment to one of the first posts here about Hedin’s course(s) and his proselytizing.
I agree with Prof. Ravitch’s reasoning, but I don’t agree that current law makes any publicly-supported university a “state agency,” or that faculty members employed by public universities are thereby “state employees” because the universities receive taxpayer funds.
We don’t yet have a reported Establishment Clause case where a public university has been found to have committed “state action” (one eleement of a successful claim). And I believe that Prof. Ravitch concedes this in his paper.
A federal court may someday hold that a publicly-supported university is a “state actor” for Establishment Clause purposes, in the same way that a public school or a city council is a “state actor.” Some lawyers (like me) might view that as a bit of a stretch, but it’s a logical extension of current law, and a plaintiff’s lawyer need not feel embarrassed (or worry about receiving Rule 11 sanctions from the federal court) if she or he makes the argument.
However, as I’ve said ad nauseam in previous comments, the stronger, easier claim to make and to win is that Ball State is engaging in mispresentation and is cheating its students by allowing Hedin to keep religious and non-scientific content in a course that is described and “marketed” as a science course.
I’d also point out to JAC et al. the potential consequences of what they want. It will legtimize things like Cucinnelli’s witch hunt of UVA professor Michael Mann. After all, Mann is (according to you all) a state agent, speaking for the state. So the AG has a right to investigate him, determine whether he’s wasting money, and potentially fire him for misconduct, right?
I don’t think that a successful Establishment Clause case (by a student or an advocacy organization like ACLU or FFRF) against a public university would “legitimize” actions by state attorneys general or state budget watchdogs against university professors who are engaged in controversial research but without religious proselytizing. When a university professor engages in research, there are broader rights free inquiry and free speech involved; church-state separation issues may not be involved at all.
As public universities are usually structured and operated, elected officials of state government do not have the direct right or power to fire a faculty member or employee of such a public university; that power is reserved to the university’s officers and boards of trustees.
I’m sure there are plenty of conservative politicians that will argue that evolution is entangling with religion, and therefore, if you say Hedin and other professors are representing the state opinion, then they are bound not to say anying pro- (or con-) about it.
Evolutionary biology can be taught (and arguably should be) without mentioning religion or religious ideas at all. No “entangling” necessary.
For an adventurous, zealous civil rights / First Amendment lawyer representing a student plaintiff, showing that a university elective course with this or that content amounts to “representing [or presenting] the state opinion” is precisely what the lawyer would have to establish, in order to win on an Establishment Clause claim. And it would be difficult to establish. With no exceptions that I can think of (and I’ve been out of university for 37 years now), the States don’t dictate or control the content of courses presented at their publicly-supported universities.
Yeah, conservative politicians may well argue that saying anything positive about Evilution is an anti-religious message, and therefore that some sort of equal treatment or equal time is required. But in the context of college-level courses, there are no cases so holding, and of course, a ban on teaching evolutionary biology in public schools has been verboten and unconstitutional since Epperson v. Arkansas in 1968.
Teaching evolutionary biology requires context. Darwin’s accomplishments came after other efforts to describe the puzzle of how animals came to be as they are, how fossils came to be layered in rocks, and so forth. One can not responsibly avoid talking about the role of religion in earlier attempts to figure all of this out.
So, no, you can’t really teach evolution without talking about religion at all.
I agree that teaching evolutionary biology is richer and more interesting when the historical context (including earlier “natural theology” explanations) is also covered, but I maintain that it is possible to adequately and accurately teach the subject (the current knowledge, the current explanations) without goring anyone’s particular “religious ox.”
Well, you may maintain that, but it is like me telling someone that French literature could be taught without considering social conditions in France when Balzac was writing.
How can you understand Darwin’s accomplishment without mentioning Bishop Wilberforce? You can’t understand a subject if you don’t understand the history of that subject. Doing that would be depriving students of a complete education on the subject.
Says you (and me). But if you are going to say that professors speak for the state, then the state gets to decide what it says about science, doesn’t it? And if state policy makers decide that nobody can say anything about evolution becaues they think its entangling with religion, then according to your ‘they are state agents’ view of professors, they have to toe the line.
You need to really consider the downside to using ‘Hedin is a state agent’ as a reason for preventing him from presenting creationism. Because if he is, they all are, and if they all are, the state can decide what they all say in class.
We’ve had this discussion before.
At Arizona State University, there can be no doubt but that faculty are state actors. They’re hired by the state, they swear the same loyalty oath to the state as all other state employees, they’re paid by the state, they participate in the exclusive-for-state-employees retirement fund, and the governor and state officials sign diplomas.
You’ve indicated that it’s not the case in the Midwest, but my cursory investigation into it indicated that at least Ball State has the exact same administrative structure as ASU…and, frankly, I’d be surprised if any of the rest of it is any different.
Indeed, a very quick Google search indicates that it’s almost certainly no different. Otherwise, why would the BSU page for retirement options link to the Indiana Public Employees’ Retirement Fund?
http://cms.bsu.edu/about/administrativeoffices/payrolleb/benefits/retirement
Cheers,
b&
In Indiana, public university employees are not on the “state” payroll. Their paychecks are not signed by the Governor or by any other elected official. Public universities have federal taxpayer I.D. numbers different from the state. Unlike public school corporations, which can exert considerable influence over the course content in their schools, Indiana state government does not (and under state law, cannot) exert influence over the curricula in state-supported universities.
The Indiana Public Employees Retirement Fund (PERF) is used as a retirement savings vehicle not just by state employees but by the employees of other entities. PERF and the Teachers Retirement Fund (TRF) are two of the funds in INPRS, and the INPRS web page refers to “public universities” separately from government employers:
http://www.in.gov/inprs/
Ball State, like other public universities in Indiana, offers not just PERF and Teachers Retirement Fund participation, but also several other retirement savings alternatives, including at least one alternative plan allowing participants to choose between TIAA-CREF, Fidelity, Lincoln, ING, etc. http://cms.bsu.edu/about/administrativeoffices/payrolleb/benefits/retirement
Indiana public universities such as Ball State still have faculty and other employees participating in PERF largely as a matter of historical accident. Social Security coverage was not available for employees of state and local government units (including public schools) or for employees of state universities and colleges. Until the Social Security Amendments of 1983 made participation mandatory for most nonprofit organizations and for many government employers, most employees of state-supported colleges and universities did not participate in the Social Security, and many were not required to participate. Accordingly, state universities in Indiana were allowed to PERF participation to their employees, as an alternative to Social Security. This began to change around 1977, when Social Security coverage became available to these employees under federal-state agreements, which in Indiana had to be approved by referenda (Employees participating in state university retirement plans got their own referendum). Under the current laws governing PERF, the only new employers that cab be “admitted” to PERF must be political subdivisions (public school corporations, cities and towns, etc.). Public and state universities in Indiana are NOT within the statutory definition of “political subdivision” in any Indiana statute or regulation that I have read, and I know the Indiana Code as well as the next bloke.
So, with all due respect for the idiosyncratic status or governance of Arizona State University, here in Indiana, a state-supported university is not an “arm of the state,” and it is not a “state actor” for Establishment Clause purposes just because our Governor appoints members to the university boards of trustees, or just because the universities receive state budget money.
You seem pretty sure of yourself. Can you quote some case law on that?
Setting it up, appointing the governing body, providing the property, and paying the bills, seems to me, makes it an agency of the government.
I’m sorry, but what you write doesn’t even pass the sniff test.
That the faculty have options other than the state pension fund is irrelevant. They’re eligible to buy into the state-managed fund for state employees and receive payments by the state, something that’s only an option for state employees.
And your last clause — in every other context, receiving state funds immediately places burdens even on private actors for what they can do with those funds. Private religious schools can take public money, but they can’t use that money for religious instruction.
Yet more trivial research…the official university “fact book” describes Ball State as “a state-assisted residential university.”
Their mission statement describes themselves as a “public institution.”
And we’ve already covered the fact that the Governor is at least the ceremonial head of the university, even if he doesn’t have an active role in administration.
The funding alone — that you yourself acknowledge they receive, and I think you’d agree in significant amounts — is more than enough for the First to apply. That they carry all the symbolic trappings of an official state agency and that their employees reap all the benefits of being official state employees just seals the deal.
At this point, attempts to claim otherwise ring as hollow as somebody trying to get out of a conspiracy conviction by claiming they didn’t personally pull the trigger, even though they paid the hitman — but not for the murder, just to do a bit of housecleaning.
Cheers,
b&
Ben,
Indiana’s governor is NOT the “ceremonial head” of any of the state universities.
Ben,
“Public Institution” is not a technical term of art or category under Indiana law. Using it does not establish that the labeled organization is a state agency, a state intrumentality, or an “arm of the state.”
For example, all states (to my knowledge) will approve the incorporation of nonprofit charitable organizations (501(c)(3) organizations) and will issue state charters (certificates of incorporation). These corporations are almost always formed by private individuals. States that have income tax and sales tax laws will usually grant exemptions to these nonprofit corporations. In Indiana, as in many other states, a nonprofit corporation can be formed as a “public benefit corporation” (a technical term, denoting that the corporation’s assets are permanently dedicated to some purpose(s) that serve the public good (education or research, public health, public welfare, the arts, etc.). Such a non-profit corporation may also qualify as a “publicly supported organization (a/k/a “public charity”) for federal tax purposes, as distinguished from a private foundation. The fact that a nonprofit institution or organization can be classified as “public” for some purposes does not make it an “arm of the state.”
In Indiana, a state educational institution such a state university is classified as a “political subdivision” only for purposes of the Indiana Tort Claims Act (see Ind. Code 34-6-2-110), whose purpose is to make it more difficult for state and local government bodies, public schools, city or cocounty hospitals, etc. from being sued for torts such as negligence.
The legal issue of whether a public or state university is an “arm of the state” for some purposes, for all purposes, or for none is a complicated one. In the context of civil rights lawsuits against public universities, there are many, many cases coming up with diametrically opposite answers. See 65 A.L.R. Fed. 490. I get the sense that there is “results-oriented jurisprudence” at work, because in some cases, the appellate courts “want” to allow the suits to proceed, whcih can only happen if the defendant university is a “person,” instead of a state agency or instrumentality.
For example, in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), the defendant was an allegedly “private” institute with a charter from the State of Illinois, heavily regulated by the State, and the recipient of State funds. The Court held that the institute’s acions (alleged gender-based job discrimination) were not “state action” for civil-rights-lawsuit purposes.
For a migraine-inducing example of the hair-splitting that can occur involving “state actors,” “state action,” Eleventh Amendment immunity for state actors, and section 1983, see this opinion and order in a 2002 case, Benson v. Trustees of Indiana University, 2002 WL 31242606.
Keri v. Board of Trustees of Purdue University, 458 F.3d 620 (7th Cir. 2006). The same case held that Purdue would not have immunity from a lalawsuit seeking prospective injunctive relief rather than damages.
None of these cited cases were Establishment Clause lawsuits, but they illustrate that on n the “state actor / state action” issue, a simplistic and conclusory approach is not going to cut it.
So is your argument now that the First Amendment doesn’t apply to Ball State in this case because Ball State is not part of the state government and Hedin is not an actual state employee? Which means, I guess, that in states where that is not the case, the First Amendment would apply? Because that seems to be a different argument than you were making, when you claimed the First Amendment wouldn’t apply at all in cases like this.
Saying “The First Amendment applies to this situation” or “The First Amendment doesn’t apply” is too general and too abstract, and I never said either. It’s important to distinguish which First Amendment princples are at stake or in play: Free speech (expression)? Free exercise of religion? Or the Establishment [of religion] Clause? It’s also important to distinguish between a case in which the university chooses or declines to take action against a faculty member regarding inappropriate and/or biased religious content in a science course (the university clearly can act), and a threatened Establishment Clause claim by a student or an advocacy organization against the university.
I have seen no reported cases, and no one here has cited a case, in which a state or public university, as a defendant, was specfically held to be a state actor for Establishment Clause purposes. In Gheta v. Nassau County Community College, 33 F.Supp.2d 179 (E.D.N.Y. 1999), the court — in the course of dismissing the Establishment Clause claim — assumed that the college’s receipt of up to one fourth of its budget from county taxes was enough to give the taxpayer plaintiffs legal standing. For a related earlier decision in the same case which discusses “academic freedom” as a defense, see 923 F.Supp. 398 (E.D.N.Y. 1996).
Please note that when a federal court considers the sufficiency of a complaint as a result of a motion to dismiss, the court is required to treat the factual allegations of the complaint (such as an assertion that the defendant college or university is a state government actor or agency) as true. If a plaintiff beats a motion to dismiss, “all of his or her real work still lies ahead,” as Christopher Hitchens might have said.
Jeff, yet again, the case you cite argues the exact opposite position of the one you assert it does.
Specifically, you claim:
And yet, your very next citation is of this case:
http://scholar.google.com/scholar_case?case=1747894613684833627&hl=en&as_sdt=2&as_vis=1&oi=scholarr
You note that the court determined that at least one of the plaintiffs had standing.
And then you ignore the fact that the court then applied the Lemon test in that case.
To wit:
How on Earth could the Court be applying the Lemon test unless the Nassau County Community College was a state actor?
I’m sorry, but this is really most disturbing behavior on your part. I haven’t seen this type of blatant distortion of the facts since the last time a Creationist came in here arguing that Darwin was a Nazi.
I mean, really. Right here in your own post claiming no legal precedent that state colleges and universities have ever been considered state actors, you yourself cite a case that hinges on a college being considered a state actor.
Do you think you can just toss out case citations to establish yourself an authority without expecting anybody to actually read them to see if they say what you claim they do? Especially given your record of grossly distorting the facts and decisions in those cases?
b&
I’m sorry, but that’s just simply not even a remotely defensible statement.
The Governor appoints the Board of Trustees. The Board is responsible for governing and administering the University. You can confirm this on the University’s official statement here:
http://cms.bsu.edu/about/administrativeoffices/president/administration/boardoftrustees
When you open with a whopper such as you did, it’s really hard to take anything else you write seriously.
And, I must say, the rest of your citations don’t seem to hold up to even cursory scrutiny, either.
Working from the bottom up, you can read the 7th Circuit decision in Keri v. Board of Trustees of Purdue University here:
http://scholar.google.com/scholar_case?case=16407544746927411212&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Most of the document is the district court’s order. But the 7th Circuit’s analysis is at the top, and they make it clear that they upheld the lower court’s decision because “Keri has failed to establish his prima facie case.” Everything that follows is about how Keri was consistently and conclusively demonstrated incorrect or irrelevant in his claims of fact, and not on anything even remotely related to legal nuances, let alone constitutional matters. In short, he was wasting the court’s time.
Google knows absolutely nothing of Benson v. Trustees of Indiana University…and, at this point, I seriously have to question what you’re up to. Either the case is so obscure that it’s irrelevant, or you’ve misidentified it so badly that even Google can’t figure out what you really meant, or maybe even you’ve simply made it up.
Cohen v. Illinois Institute of Technology is available here:
http://scholar.google.com/scholar_case?case=13488502833544827266&hl=en&as_sdt=2&as_vis=1&oi=scholarr
The only substantive claim that IIT is a state actor is based on state funding. But the court concluded that “[a]t most, however, the funds contributed by the State represent only a small fraction of the cost of educating the students for whom the grants are paid.”
In contrast, as you can see here:
http://cms.bsu.edu/-/media/WWW/DepartmentalContent/Factbook/Transparency/Ball-State-Budget-Request_2011-13.pdf
on page 31, Ball State gets almost half of its $600M budget from the State of Indiana and the rest from student fees. In the past, before budget cuts, the State has historically provided significantly more of the University’s funding.
So, since neither your first nor last three claims withstand even cursory scrutiny, I hope you’ll forgive me if I don’t at all feel inclined to trust any of the rest of your analysis.
Cheers,
b&
It’s important to distinguish which First Amendment princples are at stake or in play:
I thought it was understood we were talking about the Establishment Clause, since that’s what has been brought up numerous times, in the original post, the articles cited, and many comments. I haven’t seen anyone make a serious free speech claim.
I have seen no reported cases, and no one here has cited a case, in which a state or public university, as a defendant, was specfically held to be a state actor for Establishment Clause purposes.
So in the absence of such a previous case, you assume the default to be that these state employees are not acting as part of the state, and therefore not bound by rules in the ways that other state employees are. That seems odd. I still don’t understand if it is your argument that Hedin is not bound by the Establishment Clause because he is not acting on behalf of the state. Which would mean that if it were decided he is a public employee, acting for the state, he would be in violation of the Establishment Clause.
Correct. If Hedin were proved to be a “state employee” or the employee of a “state instrumentality,” then the “state action” element of an Establishment Clause claim would be satisfied, and it would be pretty tough for Ball State to defeat the claim, unless it could convince the court that there was no compulsion or coercion present.
Hedin (in structuring and presenting his course as he has) is not “acting on behalf of the State of Indiana, the state government. The state government knows from nuthin’ about the content of Hedin’s course. The state government is prohibited by law from meddling in or micromanaging university course content. The more difficult issue is whether Ball State University and its operations are so closely connected to the government of the State of Indiana that it should be treated as the alter ego or as an instrumentality of the State for Establishment Clause purposes. Given the lack of state government involvement in the content of university courses, that will not be easy to prove.
The state government knows from nuthin’ about the content of Hedin’s course.
The state government, through its duly appointed officials, acting through the Ball St administration, have certainly approved the course, and have done so for years. So, of course, they knew about it. And, as Ben Goren pointed out above, the US District Court in New York clearly considered the Nassau County Community College to be part of the state and subject to the same rules as any arm of government would be. How is Ball St any different?
I think a recap might be in order here.
The Governor of the State of Indiana appoints the Ball State University Board of Trustees, and the Trustees are responsible for everything that happens at the University.
The University was founded when the Ball Brothers gave it to the State and the State Legislature accepted the gift.
The State of Indiana to this day continues to provide almost half the University’s funding, with the rest coming from student tuition. In the recent past, before budget crises driven by the Great Recession, the State has provided the majority of the University’s funding.
University employees are permitted to participate in the exclusive-for-state-employees state-run retirement fund.
And, if there was any remaining doubt in the matter, in the very case you cited, Gheta v Nassau County Community College, the Court determined that the College was a state actor and explicitly, by name, applied the Lemon test.
Really, this is as slam-dunk open-and-shut a case as there could possibly be.
Do you dispute any of those facts? Do you claim the court inappropriately applied the Lemon test in the Nassau County Community College case? Are you arguing that state universities are somehow different from community colleges in such matters?
Or are you, as it’s seemed from the beginning and only become more apparent over time, just blowing smoke up everybody’s asses?
Cheers,
b&
Serves me right for trying to argue points of legal precedent with non-lawyers, even very smart non-lawyers.
Yes, Gheta v. Nassau County Community College applied the Lemon test, and it did so in the course of dismissing the Establishment Clause count. When a court has decided to dismiss a claim, it can (and frequently does) assume that other elements of the claim (such as the plaintiff’s standing, or the element of “state action”) have been established, because a finding that those other elements are present or satisfied does not affect the result: dismissal. Courts and lawyers do this frequently: It’s been called “assuming arguendo.” Sometimes an issue that could have or should have been contested was not contested, or was not preserved for appeal. In i>Gheta, the dismissal (summary judgment for the defendant college)was on the grounds that in fact there was no relgious content in the challenged course.
In Gheta and the other cases we’ve discussed or mentioned above, the courts have glossed over the issue of whether a public college or university was a state actor or was engaged in state action, either because the issue was not contested (e.g., the university wanted to be able to claim sovereign immunity and admitted that it was a state actor) or because discussion and analysis of the issue wasn’t necessary for the result reached. The ALR annotation that I cited (there are others, collecting dozens of cases) show that courts nationwide have issued contradictory, fact-sensitive opinions on whether or not a public university is engaged in “state action” or is a “state actor” for civil rights claim purposes. Some cases say yes and some say no.
Finally, keep in mind that despite all of the state financial support received by Ball State University, the state government is prohibited by law from involving itself in the management of university operations, including its curricula and the hiring, firing and promotion of faculty. Ind. Code 21-18-6-4.
I’ll make a prediction: If Ball State stands its ground (which would be wrong and unfortunate, in my opinion) and refuses to do anything to change how Prof. Hedin presents his course, and if the FFRF or the ACLU or some student sues the University for an Establishment Clause violation, we will see the University interpose numerous defenses. Depending on what other (non-constitutional) claims are asserted in such a lawsuit, Ball State may even assert defenses that look logically inconsistent (e.g., “We are not a state actor for purposes of the Establishment Clause claim, but we ARE a state actor for purposes of these other claims”).
Consider me to be a smoke blower or a poseur if you must. But I’ll say again that a victory on an Establishment Clause claim against Ball State University in this situation will not be open and shut.
Not really. They found a great deal of religious content. The dismissal was because, “The dispositive issue is … whether the inclusion of such statements communicates a message of government endorsement or disparagement of religion.” They found no such endorsement. As a side note, this also shows that they obviously considered the college a part of the government.
Jeff, I’d like to give you the benefit of the doubt here. I really would.
But, once again, you’re citing sources whose plain language says the opposite of what you would have us believe they say.
Specifically, Indiana Code 21-18-6 can be read here:
http://www.in.gov/legislative/ic/code/title21/ar18/ch6.html
and section 4 reads:
(Is your copy torn off after the word, “institution”?)
So, right of the bat, this is something of a red herring since we’re right back to the Governor-appointed board of trustees. The state law you’ve been banging on relates to the ICHE, not to the institutions actually responsible for day-to-day operation of the university. And, again, we’ve already established that those institutions are staffed personally by the Governor.
But even still, the ICHE says about themselves here:
http://www.in.gov/che/2376.htm
that they “[d]efine the educational missions of public colleges and universities.”
Now, I don’t feel like digging through Indiana law, but I’m going to take a wild guess and suggest that defining educational missions is one of those managerial operations that has been expressly set forth in Indiana law as something the ICHE is actually permitted to do.
(Incidentally, a quick glance at chapter 9 suggests that they’ve got a great deal of power, indeed.)
So, if we assume that the ICHE is actually responsible for defining the educational mission of Ball State, and that they have the legal mandate to do so…well, right there is the State telling the universities what to teach.
Oh — and, in case anybody’s wondering: the Governor appoints twelve of the fourteen members of the ICHE.
So. The Governor appoints the members of the body that operate the universities. The Governor also appoints the members of the body that defines their educational missions. The State pays almost half the bills (and has traditionally paid more). The administration and faculty members get all the benefits of being civil servants. The courts have elsewhere determined that state-run schools at both the secondary and postsecondary levels are prohibited from teaching Idiot Design…
…and yet you’re still arguing that maybe this is a legal gray area? And you’re basing your arguments on your “interpretations” of laws and rulings that are diametrically opposed to what those laws and rulings actually say?
About the only thing I’d be willing to concede is that the courts have been known to do idiotic things in the past. But the only way the courts could be idiotic enough to rule in favor of Idiot Design in this case would be if they’re so corrupt, either intellectually or fiscally, that they make mafia hit men look like a Rhodes Scholar choir boy.
I’d suggest that you should cut your losses, except for the fact that you’re doing all the heavy lifting in making the case against Hedin and his superiors.
Cheers,
b&
Ben,
Courts don’t just reach conclusions that seem idiotic. They also circle the wagons to protect government agencies and other important institutions, so long as they can come up with some legal pretext, grounded in statutes or case law, to justify the result reached. That is just one of the reasons why it is difficult to win on a constitutional claim against a large and important institution (whether it is “clearly” a state actor or not). Another reason is the general muddiness of Establishment Clause case law, with uncertain overlap between the Lemon test, the Coercion Test, and the Endorsement Test. The casual observer would look at many of the Establishment Clause cases of the last 20 years and conclude that the federal courts just decide off-the-top what result they want to reach and then concoct a post hoc justification by pulling semi-random quotes out of previous opinions (The sort of tactic that I’m being accused of, I guess).
Of course you don’t feel like digging through the law. It would be boring. In the statute I cited, the clause “except as expressly set forth by law” is standard verbiage to prevent contradictions between the section in which it appears and other laws. I have looked for other state laws that give meddling or management powers to the Indiana Commission {ICHE} (or other state agencies or officers outside the Ball State Board of Trustees. I have found none. The ICHE web page to which you linked also says this: “The Commission is not a governing board, but a coordinating agency that works closely with Indiana’s public and independent colleges.”
I.C. 21-18-6-4, which I cited and which you quoted, ends with “management, operations, and financing of state educational institutions remain exclusively vested in the board of trustees or other governing boards or bodies of the state educational institutions.” What do you think “exclusively vested in” means?
The ICHE does exert considerable oversight and control over fiscal matters affecting state universities, including monitoring how state educational institutions spend state money. The legislature has given the IHCE the authority to devise and to refine rules for the transfer of course credits or for-degree credits between colleges or universities. And the IHCE has the power to approve or disapprove the creation of new campuses or degree programs (I.C. 21-41-2-2). Finally, the IHCE works closely with faculty panels to develop tools for measuring “outcomes” (Are students getting their money’s worth in terms of proficiency and career preparation?).
But the ICHE’s general power to “[d]efine the educational mission of public colleges and universities” does not extend to the design or micromanagement of course content or the supervision or disciplining of faculty. At http://www.in.gov/legislative/ic/code/title21/ar41/ch2.html you will find this section:
The legislature has given the Ball State Board of Trustees the power to prescribe and apply its own standards and conditions for admission. I.C. 21-40-3-1 and -2. The broad general powers of the Ball State Board of Trustees are found in five sections starting at I.C. 21-27-3-1. http://www.in.gov/legislative/ic/code/title21/ar27/ch3.html Those powers include “all power not otherwise specified by law in order to efficiently operate the affairs of Ball State University.”
I have looked for Indiana state statutes and regulations that give, or purport to give, the legislature, the Governor, or any state agency the power to prescribe or to regulate course content or the hiring, supervision, disciplining, or firing or faculty. I have found none.
You seem to be asserting that the Governor’s periodic appointment of the members of the Ball State University Board of Trustees somehow gives elected or appointed state officials (IHCE members or others) the power to define and regulate course content and the universities’ supervision and management of faculty, or that state officials actually exert that power. And that’s all it is. An assertion. It’s not supported by what Indiana state law actually says. Do I know Indiana law better than a non-lawyer who doesn’t live here in the Hoosier State? Of course I do.
Now, if a lawsuit were filed against Ball State, and if the University were to concede (or if a federal court were to find) that the University itself is a “state actor” for Establishment Clause or civil rights purposes, then the lack of curricular micromanagement by elected or appointed state officials outside the Board of Trustees would not matter. But the issue of whether Ball State is such a “state actor” in the Establishment Clause context IS in a gray area. Based on the messy state of the case law, a federal court could rule either way. The concept of coercion or compulsion is almost always an explicit or implicit part of Establishment Clause analysis. The Trustees of Ball State University do not force any student to apply for admission or to take any particular course. If a student takes Hedin’s course and discovers, 3 or 4 weeks into the semester, that the course is a waste of her time and that she cannot drop the course without significant opportunity costs, is that sufficient coercion or compulsion? Perhaps.
I’m done with this debate . . . at least until after Jerry posts some new development. Keep in mind that I am on the same side as Jerry and most of the commentators on these threads. In my own long-winded way, I’m merely recommending caution in assessing the likelihood and “ease” of success with an Establishment Clause claim against the University.
Cheers.
No.
I’m making the point that anybody whom the governor appoints is a state official, and that anybody whom the governor’s appointees hire are state officials, and so on down the chain of command.
You know? Exactly the same way it works in every executive branch of basically every government in all of history?
Of course the governor and legislature don’t micro-manage what happens in the classroom. Presidents and senators personally don’t tell the private exactly where to dig the latrine trench, either.
But the president, with the advice and consent of the legislature, picks the people who pick the people…who pick the people who dig the latrine trench, and it’s that chain of command that makes all of them state actors. Each and every one of them, from private through president.
It’s exactly the same way with law enforcement, or tax offices, or regulatory agencies, or public works, or anything else.
But all this is moot. You’ve already supplied case law (Gheta v Nassau County Community College) that clearly and unambiguously establishes state-run post-secondary education institutions as state actors, and uses the exact same reasoning that I and others have been using all along to come to that conclusion. And we already agreed that primary and secondary state-run education institutions are state actors; all this argument has been you claiming that the “post-” part of the description somehow exempts this one part of state government from actually being a part of state government.
Your arguments don’t pass the sniff test. They don’t withstand cursory examination. They don’t withstand detailed examination. They haven’t stood up in court adjudication.
You have neither the facts nor the law on your side, even though you’ve repeatedly and falsely claimed otherwise. So, yeah, I do think you’d be wise to call it quits.
Cheers,
b&
I’m somewhat confused by Jerry’s argument and find myself agreeing with Eric above that the quoted material provided works against Jerry’s case. Here are a few quotations from part I:
“There is a significant amount of case law holding that public university officials may insist that professors teach within the stated curriculum. It is equally clear that within the curriculum, professors are accorded a great deal of academic freedom; although there are some limitations.”° Some of these cases involve professors inserting their religious views into COURSES UNRELATED TO RELIGION……”
“Most of the cases do not involve garden variety teaching disputes. They more frequently involve either overt sexualized or profane statements in courses that do not touch on sex or profanity in any way, or they involve the INSERTION OF MATERIAL THAT MAY RUN CONTRARY TO THE FOCUS OF THE COURSES INVOLVED.”
What I don’t understand is that the course discussed in Jerry’s earlier post (ASTR 151 The Boundaries of Science) explicitly states that the course will include discussion of religion. The course objectives say:
“The objectives are to give a scientifically accurate introduction to the…physical universe….These will then be considered further for their implications relating to the significance and value of human life, and as possible indications OF THE NATURE AND EXISTENCE OF GOD.”
http://whyevolutionistrue.wordpress.com/2013/04/25/science-course-at-ball-state-university-sneaks-in-religion/
So I fail to see where the violation occurs. Religious content is NOT unrelated to the focus of the course described, nor is it extraneously introduced. This case is not at all like teaching ID in an evolution class.
I actually think this case is stronger than those mentioned in the examples especially on the obligation “to enforce “legitimate pedagogical interests””
The objectives state:
The course objectives are to give a scientifically accurate introduction to the origin and development of the physical universe (cosmology) which has led up to the formation of the Earth as a uniquely suitable environment to support life.
The course claims to be scientifically accurate but the claims even in this sentence *are not* (uniquely suitable environment to support life) suggests some a priori religious thinking just in the way that sentence holds together.
Moreover, the reading list is slanted to support only religious ideas. This is more than a professor inserting his views….it’s the whole course that is slanted to inaccurately support religious views AND it’s teaching inaccurate information that would require enforcement for the same of ‘legitimate pedagogical interests
“This is more than a professor inserting his views….it’s the whole course that is slanted….”
I’m not sure I see how this is “a professor inserting his views….” My point was that the objectives of the course state the course will include discussion of religion, so his discussing religion is not an outside “insertion” or something. It is not in addition to what he says the course will be about. Your other point about the content of the course being “slanted” I agree with. But that merely suggests the course is poorly designd and should be made more balanced.
Because it is one think to mention religion and another to teach a whole course from a religious perspective.
I guess I just don’t see the difference. The issue is not about how much religion is discussed in the course, but whether it is an outside insertion that doesn’t fit the content of the course. And I guess I just don’t see that anything you’ve said speaks to this point.
What you quoted suggests that it may be appropriate for professors to comment on religion. Commenting and teaching a course biased toward religion are two different things.
For the record, I agree: absolutely his actual classroom material does a lousy job of meeting course objectives, and absolutely the reading list is slanted. To me, those are excellent grounds for the University to pull him from teaching these classes, discipline him, and/or fire him.
Christianity died in Scandinavia? Then apparently Hedin’s two years prosletyzing during his mission to Sweden were wasted, so why would creationists support him? Apparently he’s not very successful at converting people 😉
Looks like material for an amicus brief. . . .
I really think this is a clear violation. Hedin is using his position in a state funded institution to give the appearance of scientific credibility to a religious theory that has none. If he did not present it as science, a philosophy course perhaps, or if there were no public funds in the university, there would be no case. Even if what he was teaching was not religious in nature there would be no legal problem. However, none of those conditions are met.
The idea that ID is completely off limits is a red herring, as are the cries for academic freedom. A state funded institution cannot present religious ideas as legitimate science. Teach ID in a privately funded university or in a religion class, both are very “academically free”. There are entire Christian Universities, for crying out loud, that can exist just fine so long as they are not state sponsored. The use of state money and presentation as legitimate science are the limitations that are being violated here.
The university needs to correct the situation or lose its state funding. The legal precedents Jerry presents here leave no room for doubt in my mind.
Yes and those that are throwing out those red herrings should be ashamed of themselves. The ID crowd keep claiming that opponents of Hedin’s course want to remove the content from the university when ceasing to teach it in a science class as legitimate science for science credit is all that is being asked.
Jerry, you wrote: “This is the only article I know of that deals with this issue….” I imagined that by now someone would have referred you to this essay:
http://www.insidehighered.com/views/2013/05/30/essay-whether-academic-freedom-protects-teaching-junk-science
I wonder what you think of the argument made that neither academic freedom nor First Amendment concerns are relevant regarding Hedin.
I believe that article was mentioned on a previous thread. In any case, the article seems pretty weak, full of conflicting previous cases, with lots of ifs and maybes. The bottom line was “although it might be difficult to discern a secular purpose, and the primary effect might be religious, on balance, the courts would probably not find this dubious course to violate the Establishment Clause.” Hardly a ringing endorsement.
In particular I found the following claim problematic. “There’s little likelihood that reasonable observers would think the administration endorses the professor’s religious message.” On the contrary, considering the fact that they hired him out of an Evangelical Christian college, and he has taught there for ten years with the course approved by the administration, I would say the opposite is true.
I would think that allowing the class to fulfill a science credit could be seen as endorsing the material as legitimate science, and thereby endorsing the religious material. That falls directly into the purview of the First Amendment.
I doubt there are many who would have a problem with a course that explains the various arguments of ID or creationism, provided it is presented in a fair and secular way (which would prohibit it from any science curriculum). Hedin simply cannot use his science teaching position to endorse non-scientific, particularly religious, material. Not in a publicly funded school, anyway.
Marjorie Heins, the author of that very recent (May 30, 2013) essay, is a civil liberties lawyer and a grad (FWIW) of Harvard Law School.
I think that Ms. Heins is correct to point out that it is not easy to apply the Lemon test or the later “coercion” test to a public university, or to establish the element of “state action.” On the issue of whether Ball State has the right and the power to regulate what religious or pseudo-scientific content one of its professors puts into a science course, Ms. Heins reaches the same conclusion that was reached Prof. Ravitch in 2008 (and by Jerry Coyne and others, including me, within the last month): The University can compel Prof. Hedin to change his course content or can move the course to a non-science section of the University curriculum, and First Amendment or “academic freedom” considerations will not prevent or invalidate such action by the University. In this sense, “academic freedom” and the “First Amendment” are irrelevant . . . they are not effective defenses by a professor against University action.
Where I part company with Ms. Heins: She says that “outside political intererence” with the University’s decision-making (i.e., letters from the FFRF or JAC) is “dangerous”
or inappropriate. I see nothing wrong with such whistleblowing, even though it comes from outside the University.
Ooh, burn!
Nothing like an independent analysis. (I guess the “Thought you might want to see it” tail implies we should thank someone anonymous.)
Isn’t there a difference between “teaching ID” (endorsing it, proselytizing for it) and teaching about ID (what it is, evidence for [?] and against it)?
There could be a difference, if the teaching “about” ID were done honestly. There really is no evidence in favor of ID; teaching the evidence for or against ID would amount to debunking it and showing it to be thinly-disguised religious polemic.
Of course, when a proponent of ID purports to endorse ID or to “teach about” it, what he or she does is to present bogus or distorted criticisms of standard evolutionary biology, declare that evolutionary biology has no cogent response, and then conclude that this supports or proves the validity of ID.
If you were going to teach anything about ID, you’d have to start with the truth that ID is not science and present it as creationism by another name. In this way, I don’t think it is worthwhile to do a for or against. You could teach about the history of ID but not in a science class – maybe in a philosophy or sociology class or even a history of science class.
It’s pretty clear from the course materials that Hedin doesn’t present ID or creationism as non-science
“… but a religiously motivated theory with …” Really wish he hadn’t called it a theory.
Reblogged this on Mark Solock Blog.